Washington, D.C. – Two former Federal Communications Commission (FCC) Chairs and six non-profit consumer advocacy groups have united to submit a friend-of-the-court brief in consolidated cases before the U.S. Supreme Court regarding the FCC’s ability to hold wireless carriers accountable for data breaches and other violations of consumer privacy rights.
The brief was submitted in FCC v. Verizon and AT&T v. FCC by Democracy Forward on behalf of two former FCC Chairs, Reed Hundt and Tom Wheeler, as well as the Benton Institute for Broadband & Society, Consumer Reports, the Electronic Information Privacy Center (EPIC), the National Consumer Law Center, the National Consumers League, and Public Knowledge.
The cases center around financial penalties issued to four major wireless carriers in 2020 for apparently selling access to their customers’ location information without taking reasonable measures to protect against unauthorized access to that information. The FCC’s investigation uncovered that sensitive location information for tens of millions of the carriers’ customers was made vulnerable. After an investigative process, during which the carriers were given notice and the opportunity to respond, the FCC assessed penalties, finding that the carriers failed to protect their customers. Instead of waiting for the FCC to enforce the penalties in a de novo district court trial where a jury would have been available, both Verizon and AT&T sought review in courts of appeals. The cases before the Supreme Court question whether the FCC can impose penalties designed to protect consumers’ privacy rights.
“Given the availability of the very thing the carriers complain is missing here—a jury trial—the carriers’ challenge has lost its signal,” the brief notes. “Most notably, the carriers do not deny their wrongdoing here.”
“Consumers do not sign away their privacy when they sign up for wireless service, which is a crucial lifeline in modern society,” said Tom Wheeler, former FCC Chair. “The FCC acted appropriately when they issued these penalties. I am proud to join this brief, and urge the Court to respect the privacy protections Congress put in place.”
“As our personal data has become more insecure than ever, it is critical that we have strong regulators who are equipped to protect us from privacy violations,” said NCL Vice President of Public Policy, Telecommunications, and Fraud John Breyault. “Congress made it clear that the FCC’s job is to make sure that consumers’ sensitive telecommunications data is protected. The FCC, across bipartisan administrations, faithfully applied these mandates. The Court should ensure that the Commission continues to have every lever at its disposal to ensure America’s telecom carriers follow the law and to hold them accountable when they fail.”
“Cellphone providers should not be allowed to sell people’s sensitive data to the highest bidder,” said Patrick Crotty, Senior Attorney at the National Consumer Law Center (NCLC). “The Court must reject the wireless carriers’ efforts to derail the FCC’s enforcement work and escape accountability for violating customers’ privacy and selling their personal data.”
“The carriers’ constitutional argument, if accepted, would strip the FCC of its core enforcement authority and leave consumers without a meaningful remedy when carriers misuse their most sensitive data or otherwise break the law,” said John Bergmayer, Legal Director of Public Knowledge. “But as our brief explains, the carriers had the opportunity to contest the FCC’s findings before a jury and walked away from it, choosing instead to attack the foundations of FCC enforcement itself. Their challenge should fail.”
The Telecommunications Act of 1996 requires telecommunications carriers to protect the confidentiality of certain customer data related to the provision of telecommunications service, including location information. The FCC’s rules make clear that carriers must take reasonable measures to discover and protect against attempts to gain unauthorized access to this data. The rules also require that carriers or those acting on their behalf generally must obtain consent from a customer before using, disclosing, or allowing access to this data, and further make clear that carriers are liable for the actions of those acting on their behalf.
“A functional democracy relies on holding corporations accountable when they harm or abuse the people they are supposed to serve: their customers,” said Skye Perryman, President and CEO of Democracy Forward. “These telecom giants are trying to avoid penalties, jeopardizing the ability of the FCC to protect consumers’ private data and hold wrongdoers accountable. Democracy Forward is honored to work with this coalition to offer important information to the Supreme Court. We are committed to protecting our democracy and the safeguards it requires to keep people and their data safe.”
The legal team at Democracy Forward on the brief includes Pooja Boisture, Gilbert Orbea, Orlando Economos, Steven Bressler, and Brian Netter.
The friend-of-the-court brief can be found here.
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Democracy Forward Foundation is a national legal organization that advances democracy and social progress through litigation, policy, public education, and regulatory engagement. For more information, please visit www.democracyforward.org.
