Republican senators are reportedly preparing a legislative move to overturn privacy rules that require ISPs to protect their customers’ online data.
Sen. Jeff Flake (R-Ariz.) confirmed “that he plans to introduce a resolution that would roll back the FCC’s broadband privacy rules via the Congressional Review Act (CRA), which allows Congress to eliminate agency rules with a simple majority vote,” Politico reported today. Flake had a dozen co-sponsors on board as of last week, but he hasn’t said when exactly he’ll submit the resolution. In the House, Rep. Marsha Blackburn (R-Tenn.), chair of the Commerce Committee’s Subcommittee on Communications and Technology, “said last week she was speaking with colleagues in the Senate ‘daily’ about how to best utilize the CRA to undo broadband privacy,” the report also said. (Blackburn is a major recipient of donations from the broadband industry.)
The flurry of action comes shortly after industry lobby groups asked Congress to use the CRA to undo the privacy rules. The rules passed in October require home and mobile ISPs to get opt-in consent from consumers before sharing Web browsing data and other private information with advertisers and other third parties.
“Amongst other flaws, the FCC Order would create confusion and interfere with the ability of consumers to receive customized services and capabilities they enjoy and be informed of new products and discount offers,” lobby groups wrote in a letter to House and Senate leadership on January 27. “Further, the Order would also result in consumers being bombarded with trivial data breach notifications. The FCC greatly expands the category of information for which a breach notification would be necessary, even if the consumer is not harmed.”
The letter was signed by NCTA and CTIA, the main lobby groups for the cable and wireless industries. It was also signed by other groups representing ISPs, such as the American Cable Association, USTelecom, and the Competitive Carriers Association. Advertising industry groups, such as the Interactive Advertising Bureau, the Data & Marketing Association, and the Association of National Advertisers, also signed the letter.
The privacy rules could be overturned either by Congress or the FCC, which switched from Democratic to Republican leadership after the inauguration of President Donald Trump. ISPs last month filed petitions asking the FCC to reconsider the rulemaking. Chairman Ajit Pai and fellow Republican Michael O’Rielly, who now enjoy a 2-1 FCC majority, both voted against the privacy rules that were supported by Democrats.
What happens after rules are overturned is another question. ISPs say they support the Federal Trade Commission approach that “protected consumers from harmful data collection practices while permitting the flexibility necessary to allow the Internet to flourish.” But the FTC is barred from regulating common carriers, a distinction that the FCC applied to broadband providers starting in 2015 in order to impose net neutrality rules. Ultimately, Congress could ensure that the FTC gains authority to protect the privacy of ISP customers. But FTC enforcement would likely be less strict than the FCC regime, and there could be a gap in enforcement if the privacy rules are overturned while the FTC is still barred from regulating ISPs.
A coalition of consumer advocacy groups recently urged Congress to let the privacy rules remain in place.
“Broadband ISPs, by virtue of their position as gatekeepers to everything on the Internet, have a largely unencumbered view into their customers’ online communications,” the groups said in a letter. “That includes the websites they visit, the videos they watch, and the messages they send.” The FCC’s privacy rules “empower users and give them a say in how their private information is used,” they said.