Senate Debate Begins on Rolling Back FCC Privacy Regs

The Senate began debate late Wednesday on invalidating the FCC's broadband privacy regs, adopted last October by a divided FCC whose dissenters are now in the majority.

Sen. Jeff Flake (R-Ariz.) is sponsoring the Senate resolution (S.J. Res. 34), which would use the Congressional Review Act (CRA) to scrap the rules.

Flake took to the Senate floor to introduce and defend the action, while ranking member Bill Nelson (D-Fla.) led the opposition. Flake said the FCC had encroached, in a 3-2 party line vote, on the Federal Trade Commission's authority over broadband privacy.

He said the FCC had commandeered the authority without any check on what he called a bureaucratic power grab and that Congress needed to repeal the restrictions to restore balance to the broadband ecosystem. Flake said that the rules make it harder for consumers to learn about innovation in the consumer technology sector, restricting the ability of ISPs to tailor services to their customer needs.

The Senator said repealing the rules is a "crucial" step toward a single set of privacy rules for the internet.

Flake said the resolution would disrupt the FCC's power or affect how broadband providers handle consumer data, he said, given that they are still regulated under other FCC regs.

Sen. Nelson saw it rather differently.

Nelson said the resolution would take away privacy rights from individuals. He asked if his colleagues wanted an ISP with personally sensitive information on what they have been doing on the internet to use it for commercial purposes without getting their permission.

He said that the American people would answer a "big resounding 'no.’” He said consent would mean the information was fair game, but not without it.

"Personally sensitive information is what we're talking about," he said, calling it a clear-cut case of privacy.

Nelson said he opposed the disapproval of the rules and said he thought others who value privacy, including every other senator in the chamber, should also be concerned.

A vote on the resolution is expected Thursday.

Flake introduced the measure, which has backing from Senate and House Republicans, on March 8.

It is short and to the point: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that Congress disapproves the rule submitted by the Federal Communications Commission relating to 'Protecting the Privacy of Customers of Broadband and Other Telecommunications Services,' and such rule shall have no force or effect."

FCC Chairman Ajit Pai, with the help of fellow Republican Michael O'Rielly, has already stayed implementation of the data security portion of the rules, which was to have gone into effect March 2, and has signaled he wants to rewrite them or deed them back to the Federal Trade Commission if ISPs are reclassified as information service providers rather than telecoms under Title II common carrier regs. Flake and fellow Republicans want Pai to start from a clean slate.

Related: FCC Rule Repeal Won't Kill Privacy Protections

The FCC's regs require ISPs to get their subs' permission to share their web surfing and app use histories and other "sensitive" data with third parties for marketing and other purposes, a requirement ISPs and Republicans point out is not made of edge providers like Google and Facebook and their data collection and sharing. The rules also establish deadlines for breach notifications, require clear notification to customers of what data is being collected and how it is being used, and prevent “take-it-or-leave-it” offers — conditioning service on allowing data sharing. ISPs would also be required to take reasonable measures to secure the information.

The regs allow ISPs to provide incentives to customers for sharing that data, referred to by some as "pay for privacy," but the FCC would monitor the practice on a case-by-case basis and require heightened disclosure. It also said it would launch a new proceeding looking into the practice, which means it could ultimately decide to prevent it, though such a proceeding would be unlikely under the new chairman no matter what happens to the rules in Congress.

The take-it-or-leave it part has already gone into effect, the data securing requirement implementation has been stayed by the Pai FCC, and the balance of the regs would not go into effect until the end of the year.

Americans for Tax Reform praised Flake's resolution and encouraged a yes vote. "Americans value their privacy. That is why Americans for Tax Reform has been a vocal defender of privacy and the Fourth Amendment," said ATF President Grover Norquist. "However, the FCC rules use our highly valued privacy as a tool to empower agency regulatory expansion at the expense of consumers."

Norquist urged the Senators in a letter to "use your Congressional Review Act authority to withdraw the Federal Communications Commission’s broadband privacy rules and support the Federal Trade Commission framework for privacy protection."

Jeff Chester, executive director of the Center for Digital Democracy, was not happy.

"The Senate is poised to kill the only privacy protections Americans can have when they use the Internet or their mobile phones," he said. "If they vote to undue the new FCC privacy safeguard, Americans will become victims of massive ongoing surveillance from their ISPs.  AT&T, Comcast and Verizon lobbyists appear to have have the GOP in their pocket so they can grab our Internet data and sell it to financial, health and other marketers.  Today, Americans have very little privacy, because the Federal Trade Commission doesn’t have the legal authority to protect them.  Once the new FCC safeguard goes, consumers will be subjected to a Big Data monster that tracks—and profits—from their every move."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.