and there ought to be one set of rules. if a consumer has an apple iphone, they don't expect a different set of rules to apply to the internet connection that they receive than would apply to the operating system that sees all the traffic going across that phone or any of the apps on the phone. so there's an argument for consistency, and john will present an argument for exceptionalism, i think. >> guest: well, that's not exactly right, but one of the things to think about here is what, precisely what kind of regulatory authority does the federal trade commission, did it have in the past? the fact of the matter is about all they could do is under what's known as section five violation which is unfair and deceptive practice, and so that basically meant the company said they were doing something with your information in the privacy policy and turned around and did something different.

then they could be retroactively hit with some kind of a fine or something like that. that happened to google, $22.5 million. they said they were not -- they were honoring blocking third party cookies but were, in fact, hacking around them. it was retroactive. the fcc affirmatively now, under the fact that the communications law will cover them as communications -- as common carriers, they have to make rules. i mean, the ftc never had rules. they didn't have any rulemaking authority. it's all been about -- >> host: well, before we go any further here, gentlemen, let's bring howard buskirk into the conversation, executive senior editor of "communications daily. ". >> what are the concerns of the ispns, what would be your biggest concern? >> guest: well, and i'm not here representing any particular isp. i have done a lot of work

counseling clients in many different areas, including some isp clients. but i think the concern is if one were to apply the current telecommunication cans privacy rules -- telecommunications privacy rules which were developed in the context of the telecom reform act of 1996 which was a world of telephony, the rules do not work very well in the world of the internet where you have apps and you have internet advertising companies, operating systems. all these different players are involved in collecting a certain amount of information and also involved in delivering services. so the broad concern would -- from the isps -- would be that they would be discriminated against. on the one hand, they're required you should the net neutrality order -- under the net neutrality order to carry all traffic that goes across their systems. they're regulated as a sort of common carrier and required to

support all these different entities. and then they uniquely would be prohibited from participating in the internet advertising marketplace which they currently are very, very small players in. so the idea that they would have to carry the traffic but unable themselves to obtain any sort of advertising revenue by virtue of information that theying obtain by vir view of providing internet access service strikes many of the isps as really unfair and also dealing with a tiny part of the ecosystem that is not currently a major player in the world of advertising. so it's really that this would be irrational and -- >> and aren't there some questions about how much data the isps would have to protect and how much data -- in the changing ecosystem, how much they're actually, how much data that they're responsible for? >> guest: well, there's a study that just came out by the former privacy czar in the clinton white house, peter swiefer

swire, with some other colleagues of his at georgia tech which showed that the majority of internet traffic by the end of this year is going to be encrypted. so that all the content of that, of those communications will not be visible to the isp. on the other hand, an operating system provider would see that traffic unencrypted and so, actually, would have more information than the usp would. further -- isp would. furthermore, we're no longer in a world where people access the internet i via only their home isp. the average consumer uses 6.1 devices to connect to the internet, bizarrely, and most consumers are using 3-5 different internet access providers to connect to the internet every day. the single home isp, for example, does not have a unique view of a huge amount of user activity. and if you consider, and think about it, if you take your

smartphone and you connect to wi-fi which 46% of mobile users are doing for their internet traffic, that information's going through a wi-fi provider. if you access the internet from home, you will typically have a home internet provider. if you access information on your mobile device when you're not connected to wi-fi, your wireless provider will be collecting information, and then your work isp provider, whoever's providing broadband service at the office, will also potentially collect some information. but this is a much more fragmented universe with much of the data encrypted so the isp can't see it anyway. >> guest: that particular study has been disputed by a number of people recently. i think about 65 president -- 65% of the data right now is unencrypted, and that's talking about the content that's going on every over. but what's just as significant and just as revealing is the

information of what site you went to and how long you were there and sort of tracking, you know, types of sites that you visit and then having ads targeted on the basis of that sort of information. it is correct that the current rules that apply to common carriers were from the world of telephones, and they aren't adequate and really don't correctly categorize the kinds of information that should come under the fc privacy rules with broadband access providers. and that's what this rulemaking is all about. it's trying to figure out, you know, which things are, in fact, what's known as cp and i which is customer proprietary network information, the data that you gather simply by virtue of someone plugging into your network. and the idea is you ought not to be able to use that day for purposes other than completing the network transaction unless

the person gives permission for that to happen. that's the way it works in the telephone world, and it should work the same way in the broadband internet access-providing world. >> for the average subscriber, why should he care about his -- that information? are there ways in which the carriers, the isps are monetizing -- >> guest: sure. >> -- raising concerns -- [inaudible] >> guest: yeah. i mean, now you get that data, a profile can be put together about you, and you can then be sort of targeted for kinds of advertising that can end up being discriminatory and taking advantage of you in ways that probably aren't entirely fair. and while it is true that, you know, the internet is more than just the internet access providers, they are in a unique position in terms of you pretty much have to go through one, and it's appropriate because they are unique to recognize that and

deal with the data that they gather. and we can talk about other questions around so-called edge providers, the googles, the facebooks and all that. i believe there should be some rules put in place this. but that's not the subject of this particular fcc provision at this point. >> host: jim halperin. >> guest: i think you do need to look at the ecosystem for a whole. it's not true that isps have a uniquely broad view of user behavior. there's also no indication that i've read of that isps are analyzing all the unencrypted traffic that goes through their network in all the places where users are going. but even if that were the case, that is exactly what internet advertising business models do today. and it's not particularly harmful. it's, essentially, presenting ads that you may be interested

in based on where you're going on the internet. and this is how the ad-supported, free internet works today. the isps are tiny players in the world of internet advertising. there are strong self-regulatory requirements that isps and others in this ecosystem have all made to follow privacy opt-out rules in a variety of ways that give consumers notice and control. those are absolutely enforceable today. there's nothing that would change that. they're binding commitments. and to break off this what's today tiny piece of the internet advertising system ecosystem and subjecting it to rigorous rules that consumers won't understand and ignore the whole rest of the internet ecosystem is not really a rational approach to privacy on the internet. the fact is that given the way

that congress is configured right now and the house of representatives is likely to the remain under pretty libertarian republican control for at least six years and probably another ten after that, it's virtually certain that there will be no general privacy legislation that applies to the internet. there would just be this odd, tiny be little piece of the internet ecosystem that would be subject to potentially very confusing rules. what consumers want, i think, and expect is to have choices about how their information is used to have clear, transparent notice about information practices and to have an easy way to opt out of practices that they don't want to see being done with their data. but moving to an opt-in privacy rule which is effectively what john's add sew candidating -- advocating for is really quite

different. if you think about what happens with your health information, for example. when you go to a doctor, you have to sign a form, a privacy form, every single time you to a different doctor. and effect live i, that -- effectively, that's what would be happening with internet access service for information to be used for any purpose under any delivery service. >> guest: i think that's what we're essentially suggesting. e -- we think with the isps that, indeed, before they can use the information for purposes other than providing the the service, that it should be an opt-in sort of situation. and, you know, that's part of the problem right now with the internet. you talk about all these self-regulatory regimes and so on, and they're based on so-called notice and choice model where, you know, they explain it in a privacy policy,

and people say, oh, okay, that's fine. that doesn't work because the fact -- who returned around this table, when was the last time anyone read a privacy policy except maybe you because you're ca lawyer who writes them, and you get paid by the word -- >> guest: no, i don't get paid by the word. i also read them as a consumer. >> guest: my standard line is they realize like they're written -- read like they're written by lawyers who get paid by the word. >> guest: we worked together on this -- >> guest: yes, we did. i agree. and it was fun. >> right now we're in the last year of an administration, and right now the fcc is looking at just a proposal, right? so what's the likelihood they're going to be able to put out the nprm, notice of proposed rulemaking, get the comments they need back and still get a final rule and get this in place

by the end of the administration? >> guest: i think it will be very interesting to see if they can get that done. i think it's important that they do the notice of public rulemaking as soon as they possibly can, and that's -- i would expect quite soon. and that, the if nothing else, raises all the questions and gets a record going where people can put in their various views and their various concerns. and, you know, if they can come back fast enough with a new rule, that'd be great. but it can also serve as a foundation for what goes on with the next commission and the next administration. >> guest: there's also a con tin con tin general is city here -- contingency here that created this regulatory gap. it may not be upheld in its entirety. so there's a decent chance that wireless providers will be, in

the end, the d.c. circuit court of appeals is reviewing a challenge to that order, and there is a pretty good chance that wireless providers may be ruled to be outside of the net neutrality order. and if that's the case, then we would see an even more fragmented potential rule and probably a fair amount of confusion that might slow down this rulemaking. is so -- because we're on somewhat uncertain legal ground with the net neutrality order itself, we can't exclude a surprise coming from the d.c. circuit court of appeals and further narrowing the scope of this. all of a sudden you would see the, for wireless providers you would see the ftc get jurisdiction again in midstream, and it's possible that there will be litigation on this underlying regulatory fact

that's triggered this rulemaking -- >> guest: well, the whole thing could be thrown out. >> guest: right. >> guest: it is being challenged. >> guest: so that could interrupt this as well. >> host: john simpson, for folks watching this at home, what does this conversation mean to them? why is it important or? >> guest: i think it's important because it does, if it goes through the way many of us in the privacy community would hope that it goes through, i think it will mean consumers will have more choice and control over the data that is gathered about them. and i think that's an important thing in this world. and i think most people want that. if you look at the various polls that have been taken, there's great concern in the united states by the average person about their privacy on the internet. >> guest: and i think what this means really is whether consumers are going to be asked to opt in when they sign up for internet service or in the middle of a service contract

which is something that is like the health care privacy release you sign. i think consumers are going to be readier to sign on to that. i think it's better to have very clear notices to consumers and then ready control where consumers can go and choose to opt out, consciously opt out of different types of services. what john's advocating -- or use of their data. what john's advocating is a default rule where a consumer needs to, first of all, will be asked and needs to check the release so that their information can be used. i don't think that actually brings the same degree of thought as very clear short notes and ready consumer controls. you've seen google, comcast, a number of companies move to providing this so sort of consur control over uses of consumer data, and i think it gets you to

much the same place and in some ways to a better place. >> guest: i mean, i would want to have clear explanations of what it is they want to do with your data before you opt in to give permission. i think it ought to be an opt-in, you think it ought to be an opt-out. i guess. >> guest: i -- that's probably where we are. >> you both talks about a process before of privacy. would it make sense just to get nerve the room, the consumer advocates and the public interest groups and the isps and have a big discussion about this and maybe there could be an agreement on rules and that would obviate the need for the fcc to impose regulations? >> guest: i think, actually, that that probably would not work, but i'll -- >> guest: i would agree with you, it would not work. we proved that. >> guest: well, but i'll give you an example. john and i tried to work, and i devoted a lot of time and effort to a process where a set of

short form notice guidelines should be developed so that consumers could make choices about whether to use a mobile app before downloading it. and what i found in the process was that a number of the privacy advocates, and we were working with them, really didn't want to tackle just that problem. and didn't want, i don't think were interested in this effort being sortover a broad -- sort of a broad consensus agreement, because they had other things they wanted. on the other side, i found that the business community was concerned about being very prescriptive. in the end, a code was put forward, and apple, blackberry, google have all moved to do slightly difference types of short form notice. in the end, i think that that gets consumers -- to require that before apps can be downloaded -- that gets -- amazon's done the same thing. that gets consumers to a place

of receiving short form notice but maybe not in the exact way that was agreed to in the, was on the face of the cold. but it got to the same place. on the other hand, i found that the consumer advocates didn't really want to have a compromise because they want opt-in privacy rules in different places. and so they wanted to push for broader, broadly addressing that. it was much harder to come up with deals on very broad questions. it's easier on narrower questions. this took about a year. but i think that the process that that would take to yield an agreement on the whole universe would be feasible, but it would take several years x. i don't think that regulators are going to wait for that, honestly. >> guest: no, i think that the multi-stakeholder process, as they call it, may sound good, but i think that in order to really get something done, i

think you need to have a formal rulemaking. and that's what this particular thing that's coming up will be presumably. and there's a big tifns between a bunch -- difference between a bunch of people sitting around a room, all the vested and competing interests trying to come up with something and sort of agreeing. i think a formal rulemaking is a much better way to go. and i think our experience showed that. >> guest: well, i don't think that's always true, but i think in this situation it's what's going to happen, and given the limited amount of time left in this administration, i don't see a sort of mediated everett to come up with -- effort to come up with this in a short period of time. >> we going to see a big fight at the fcc on this? it looks like things are breaking down politically sort of like they did over net neutrality with the republicans on the commission very opposed to some of these rules, and the

commission majority really wanting to move forward. so do you think do you see this sort of mirroring the net neutrality battle once it gets before the commission? >> guest: i think this is a little bit more complicated an issue from a public policy perspective. there's a very strong argument that for the ftc -- fcc to move forward doing something different than the ftc has done would be arbitrary. there's a very strong argument also that internet access providers who now are absolutely required to carry all traffic should not be able to do things that thousands of other players in the internet ecosystem are doing with regard to advertising for their broadband services, over their broadband services. i think there also are legal questions here that are pretty complicated if, indeed, the net neutrality rule is struck down as to wireless providers.

and all those things may create a more, i think a more supple political alignment at the fcc, and i'm hopeful we'll work toward finding solutions that really are practical, consistent and clear to consumers and based largely on the ftc framework. i'm not sure that that's what will happen, but that was the framework that applied previously. the fcc could then enforce it with much stronger penalties. the fcc's to been very aggressive at enforcing lately, and i think jim likes that. one again can question whether that's arbitrary because ore entities are not subject to that, but whatever final set of rules would result would be enforced, i think, vigorously x. there's no question about that in light of the recent enforcement record at the fcc. so there is, i think, a middle way here x i'm hopeful that the commissioners when they really think about this and look broadly at the internet

advertising market which, again, isps are tiny players in, they'll decide that doing manager that's closer to the ftc -- something that's closer to the ftc framework makes more sense. >> host: john simpson, you get the final word today. >> guest: i agree it's a complex issue. i'm not sure it would play out exactly the same way. we'll get a better sense of that in a few weeks, i think, when the rulemaking is open and we tart to see the comments come in -- we start to see the comments come in. >> host: john simpson is with consumer watchdog where he is the privacy project director. jim halpert is a lawyer with dla piper, covers cybersecurity matters, and howard buskirk is executive senior editor of "communications daily." >> c-span, created by america's

cable companies 35 years ago and brought to you as a mix service by your local -- as a public service by your local cable or satellite provider. >> today the israeli defense minister speaks at the wilson center on palestine, the situation in syria and can the rise of isis. our live coverage begins at 9 a.m. eastern here on c-span2. >> campaign 2016 continues on tuesday with primaries taking place in missouri, illinois and swing states ohio, north carolina and florida. live coverage of the election results, candidate speeches and viewer reaction guns at 7 p.m -- begins at 7 p.m. eastern. taking you on the road to the white house on c-span, c-span radio and c-span.org. >> education week hosted a discussion friday with acting u.s. education secretary john king. mr. king talked about the

administration's k-12 education priorities. the full senate is scheduled to vote on mr. king's nomination this afternoon beginning at 4 p.m. eastern with a vote scheduled for 5:30 p.m. this is about 30 minutes. [inaudible conversations] >> all right, everybody. moving on to our final part today, also going to be an amazing half hour where you're going to get a chance to hear from a very important player in k-12, acting u.s. secretary of education john b. king jr. who is on his way to being confirmed as u.s. secretary of education. [applause] secretary king is a career ecker who taught -- educator who taught, served as a principal, operated a charter school and was new york state's education commissioner before joining the u.s. the president of education

last year. now, with less than a year to go in the obama administration, secretary king is charged with implementing the nation's reauthorized k-12 law, the every student succeeds act. so please join me in welcoming secretary king to the stage. thank you. [applause] >> good afternoon. >> good afternoon. >> wow, that was low energy. [laughter] good afternoon. >> good afternoon. >> that's better. it's a privilege to be here with all of you, grateful to leslie for the introduction can, grateful to education week for being a voice for students and educators and also for being a place for constructive, thoughtful dialogue. we're not always going to agree on every policy issue on education in the united states, for sure, but it's important that we have places for thoughtful,