Kill Broadband Privacy Rules?

Senate Moves to Permanently Kill the FCC's Broadband Privacy Rules

The rules would require internet service providers to get permission before sharing or selling 'sensitive' consumer data

By James K. Willcox

The Senate Thursday voted to roll back the Federal Communication Commission's (FCC) broadband privacy rules designed to give consumers greater control over how internet service providers (ISPs) collect, share, and sell personal information.

The rules, scheduled to go into effect later this year, would require ISPs to get consumers' permission before using "sensitive" information for commercial purposes. And the term sensitive was expanded beyond all children's information, Social Security numbers, and medical and financial data to include web browsing and app usage histories, and the content of communications such as email.

The Senate move signals an end to the FCC's effort to beef up ISP privacy requirements. The consumer-protection measures were adopted by the FCC in 2016 under then-chairman Tom Wheeler. But his Trump-era successor, Ajit Pai, opposes the rules. The agency under Pai already has rescinded a separate provision that imposed stronger data protection on ISPs.

“Internet service providers like Comcast and AT&T have been trying to get rid of these rules since the day they were approved, and the Senate just handed them a big victory," said Jonathan Schwantes, senior policy counsel for Consumers Union, the policy and mobilization arm of Consumer Reports. "Consumers have a fundamental right to privacy. This move by the Senate is a huge step in the wrong direction, and it completely ignores the needs and concerns of consumers.”

The organization noted that nearly 50,000 consumers joined an online petition last month favoring the FCC's privacy rules. And in a nationally representative CR Consumer Voices Survey, 65 percent of Americans said they were either slightly or not at all confident that their personal data is private and not distributed without their knowledge.

Florida Sen. Bill Nelson before the vote on Wednesday said the rules put "American consumers—each one of us who pay these monthly fees for their broadband service—in the driver's seat of how our personal data is used and shared. Is that too much to ask? I don't think so."

The resolution will still have to pass the House of Representatives, which it is likely to do, and then be signed by President Trump.

What's Next for Consumer Privacy?

ISPs have been under the FCC's jurisdiction only since 2015, when they were reclassified as public utilities under something called Title II of the Communications Act. Meantime, web-based companies such as Amazon and Google are regulated by the Federal Trade Commission (FTC), and face less stringent requirements.

Republican legislators and lobbyists from cable, telecom, and advertising industries say that difference in regulation is unfair. Sen. John Thune (R-SD) said Wednesday that the FCC had "unfairly distorted the marketplace when it imposed unnecessarily onerous privacy restrictions on broadband providers while leaving the rest of the internet under the strong and successful regime at the FTC."

The federal government could move authority over ISPs back to the FCC. However, that would be a complex process, and one not favored by advocacy groups, including Consumers Union. "Any fondness for the FTC’s approach to privacy is merely support for dramatically weaker privacy protections favored by most corporations," the organization wrote in a letter to senators earlier this week. "There is no question that consumers favor the FCC’s current broadband privacy rules."

The measure passed by a 50-48 vote along party lines Thursday.

To roll back the rules, Republican senators employed a legislative maneuver that "prevents the FCC from adopting ‘similar’ rules, even far weaker ones, to protect internet users in the future,” said Consumer Union's Schwantes. That restriction is one of the facets of the Congressional Review Act (CRA), which the Senate used Thursday.

The CRA, passed in 1996 to allow Congress to overturn a rule issued by a federal agency, had been used successfully only once before 2017. However, since his inauguration, Trump has signed three CRA resolutions of disapproval into law.