Several groups including ISP-backed NetCompetition, Americans for Tax Reform and a host of small-government advocates are calling on Congress to dismantle the FCC's broadband privacy framework, which it adopted in the waning days of former chairman Tom Wheeler's tenure.
The order requires ISPs to get their subscribers' permission before sharing Web browsing and app use histories with third parties for marketing and other purposes. It also includes data security and data breach notification rules as well as a prohibition on making information sharing a quid pro quo for service and a case-by-case look at offering incentives to share info. The FCC will also pre-empt state privacy, data security and data breach laws that conflict with its new rules.
In letters to the bipartisan leadership of the House and Senate, the groups asked that congress exercise its authority under the Congressional Review Act to rescind the FCC's Broadband Privacy order. The act allows Congress to review and reverse government regulations.
"Congress is fully justified in rescinding these rules both because the Order lacks proper legal grounding and because of the need to ensure real consumer privacy across contexts of user experience," the groups said. That is a reference to the fact that the framework applies to ISPs, but not edge providers like Yahoo! and Facebook and Google.
"The FCC’s approach is inconsistent with that of the Federal Trade Commission for nearly two decades, and will likely render harm unto consumers," they said.
That argument was made throughout the FCC's consideration of the framework, which passed on a party line vote 3-2.
"The FCC's questionable ability to regulate privacy standards, and its narrow view on what constitutes privacy protection, make its rules counterproductive to actual consumer privacy protections," the groups wrote. "In contrast, the FTC's approach to privacy does a better job of balancing protection of consumers’ privacy online with economic incentives to innovate in consumer products and services."
The FCC's authority to impose the broadband privacy rules stem from the FCC's Open Internet order, which the groups say is of questionable legality.
A federal appeals court has upheld the rules, but new FCC chairman Ajit Pai opposes the Title II-based Open Internet order and is expected to try to reverse that reclassification.
His name was not on the letter, but it did not take long for one House Democratic leader to provide his answer: No way.
“It’s clear that privacy critics feel emboldened to push for the elimination of privacy protections for American consumers, no matter the platform," Energy and Commerce Committee Ranking Member Frank Pallone, Jr. (D-N.J.). "This demand to gut the Federal Communications Commission is only the latest move and comes after ongoing attempts to hamstring the Federal Trade Commission. Consumers should not have to worry about their financial, medical and other personal information begin shared without their permission. I will continue to vigorously fight against these combined efforts to harm consumers and take away their privacy and data security.”
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