Voices of the Bar 4/6/17: What should ISPs do to balance customer privacy with business interests?

Internet service providers (ISPs) soon will be able to sell their customers’ data — including their browsing histories — without their consent after the House voted to rout the Federal Communications Commission’s broadband privacy rules.

This week’s Voices of the Bar question is:

“How should ISPs balance their business interests with their customers’ need for privacy?

Yale Yachiel Robinson, M. Robinson & Company

ISPs need to consider the consequences of disclosing customers’ data without harming either the customers or third parties.  A situation may arise where the disclosure of an anonymous internet user’s data could harm other individuals whose identities are known.  Compare Ajemian v. Yahoo! Inc., recently argued before the Massachusetts Supreme Judicial Court (docket no. SJC-12237).  The case involves a family’s request to recover the email archives of a deceased relative.  Yahoo’s attorney argued, inter alia, that the third parties who exchanged emails with the decedent did not consent to disclosure of those communications by anyone other than the decedent himself.  I agree with that argument, and more broadly, I suggest that the effects of disclosing information may extend far beyond the specific individual whose information is disclosed.  Therefore, ISPs should consider any possible impact on third parties before disclosing customer data.

If you would like to respond to a future Voices of the Bar, make sure you send a headshot, and contact Lauren DiTullio at lditullio@bostonbar.org.