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Markey Leads Charge Against Privacy Rule Rollback

WASHINGTON — Sen. Ed Markey (D-Mass.) laid down another marker on the issue of broadband privacy Monday (Feb. 28), headlining a press conference with privacy groups vowing to fight Republican efforts in Congress and at the FCC to roll back the regulator’s broadband privacy rules.

Markey said Democrats would wage a historic battle to preserve the rules, as well as the Open Internet order to which they is linked. He called ISPs gatekeepers, and said Federal Communications Commission chairman Ajit Pai was doing their bidding by trying to roll back the rules, starting with data-security protections. Markey said that would allow ISPs to ignore best practices and make sensitive information more vulnerable.

Republicans in Congress are trying to roll back the framework using the Congressional Review Act (CRA).

Neema Singh Guliani, legislative counsel for the American Civil Liberties Univion, said at the press conference that consumers would be harmed most by the rollback, with poor and vulnerable communities particularly affected.

She pointed out that the rules require clear notice of the data they collect and do not allow ISPs to make consumers providing information a quid pro quo for receiving service. She said that "take it or leave it" approach requires consumers to choose between giving up their privacy and using the Internet.

She also said consumers need protection from discriminatory ad practices based on the information collected and shared about them.

Gaurav Laroia, a policy counsel at Free Press, said consumers need the FCC rules to be protected from abuse.

All of the speakers argued that ISPs are essentially monopolies, so consumers have little choice between giving up personal information or acceding to their practices.

The public is not going to give up the protections without a fight, Markey said.

Pai last week pledged to stay the FCC’s implementation of the initial set of new privacy rules — data security requirements — set to take effect March 2. He has signaled that the FCC will rethink the entire regime to the degree that it diverges from the Federal Trade Commission’s lighter-touch approach to edge providers.

The FCC in October voted along party lines to require ISPs to obtain subscribers’ permission to share their Web-surfing data, app use histories and other "sensitive" data with third parties for marketing and other purposes. It was billed as based on transparency, consumer choice and data security. The FTC has no such opt-in requirements for the data collection and sharing of edge providers like Google and Facebook.

The vote on the FCC framework was 3-2, with one concurrence from Democratic commissioner Mignon Clyburn, over the absence of a prohibition on mandatory arbitration clauses, and two strong dissents from Republican commissioners Pai and Michael O’Rielly. Since then, the FCC has lost both Democratic chair Tom Wheeler and commissioner Jessica Rosenworcel, with the two dissenters now in the majority.

ISPs have said the FCC opt-in regime could take a big bite out of the free-content model that powers the Internet, since it relies on targeted marketing to remain free. They asked the FCC to stay the rules, arguing they need to be harmonized with the FTC’s approach.

Separately on Monday, Rep. Frank Pallone (D-N.J.), ranking member of the House Energy & Commerce Committee, asked the GAO to study the broadband regulatory landscape given the fluctuating authority issues and ongoing threats to consumer data and security.

The ISP-backed 21st Century Privacy Coalition is all for re-setting the FCC framework, including via the CRA.

CPC co-chair Jon Leibowitz, former Democratic chairman of the Federal Trade Commission, said that a CRA would leave no enforcement gap because "Section 222 of the Communications Act will still apply, even in the absence of specific rules. Section 222 has applied to ISPs since the FCC adopted the Open Internet Order and, in an enforcement advisory in May 2015, the FCC made clear that it would use the statute to ensure ISPs protect their customers’ privacy. A CRA resolution of disapproval therefore would not leave ISP customers’ privacy rights unprotected," he said.

"To the contrary, it would restore the status quo in effect for the 18 months prior to the passage of the October 2016 privacy rules. Moreover, the FCC is not hamstrung moving forward,” Leibowitz said. “The FCC could adopt new rules not ‘substantially the same’ as the rules adopted in October which could, for example, include an approach similar to the FTC’s proven privacy framework."