Commentary

Senator Introduces Resolution Revoking Broadband Privacy Rules

As expected, Sen. Jeff Flake (R-Arizona) has introduced a bill that would revoke sweeping broadband privacy rules passed last year by the Federal Communications Commission.

The measure has drawn 23 GOP co-sponsors, including John Thune (R-South Dakota) head of the Senate Commerce Committee. Flake's resolution would overturn the rules under the Congressional Review Act -- a 1996 law that allows federal lawmakers to vacate recent agency decisions. If Congress uses that vehicle to overturn the rules, the FCC won't be able to replace them with new privacy regulations.

The broadband privacy rules, passed 3-2 last October, impose a host of new requirements on Internet service providers. Among others, the regulations require ISPs to use reasonable security measures to protect consumers' personal data. The rules also require carriers to obtain opt-in consent before drawing on subscribers' data for ad targeting.

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Trade groups representing the ad industry and broadband carriers oppose those rules, as does Ajit Pai, the new FCC chairman.

In fact, Pai already took the first step toward repealing the rules by pushing through a measure to immediately stay the data security provisions -- which were slated to go into effect this month. The portion of the rules requiring opt-in consent for behavioral advertising are not scheduled to take effect until December.

Some observers had thought that Pai's clear signal that he aims to repeal the privacy rules would discourage Congress from moving forward with a resolution of disapproval. After all, there's no reason for Congress to act if the FCC will vacate the rules on its own. But Flake obviously wants to press forward despite Pai's obvious intentions.

Industry groups like the 21st Century Privacy Coalition -- headed by former Federal Trade Commission Chairman Jon Leibowitz and former Republican congresswoman Mary Bono from California, and funded by cable and telecom companies -- cheered Flake's move. The organization said that Flake's resolution "will give the Administration the opportunity to hit the reset button and develop a holistic approach to privacy for the entire internet ecosystem that benefits consumers."

Like other critics, they argue that the opt-in consent requirement differs from the FTC's approach. The FTC broadly recommends that Web companies allow people to opt out of the collection and sharing of non-sensitive data. The FTC also suggests that companies should obtain opt-in consent before sharing a narrow category of "sensitive" data -- including health information and precise location data.

Flake himself says his bill will mark the "first step toward restoring the FTC's light-touch, consumer-friendly approach."

Despite the lawmaker's statement, his bill would not impose the FTC's standards on broadband providers. On the contrary, his bill would strip the FCC of the ability to impose any privacy requirements on Internet service providers. What's more, the FTC currently lacks authority to police common carriers, like broadband providers.

For their part, privacy advocates are trying to rally opposition to Flake. The Electronic Frontier Foundation is already urging people to ask their lawmakers to reject the measure.

Privacy groups argue that broadband carriers aren't comparable to search engines, social networking services, ad networks or other online companies -- largely because broadband carriers have far more detailed knowledge about subscribers' online activity than other Web companies.

Sen. Ed Markey (D-Mass.), who has long championed online privacy, says he plans to fight Flake's bill. "Consumers will have no ability to stop internet service providers from invading their privacy and selling sensitive information about their health, finances, and children to advertisers, insurers, data brokers or others who can profit off of this personal information, all without their affirmative consent," he stated.

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