Commentary

Trump Signs Repeal Of Broadband Privacy Regulations

As expected, President Donald Trump signed a bill repealing broadband privacy rules that restricted carriers' ability to serve targeted ads.

The regulations, passed last year by the Federal Communications Commission, would have prohibited carriers from drawing on subscribers' Web browsing history to serve them ads, without their opt-in consent. The GOP-backed repeal cleared the Senate by a party-line 50-48 vote. In the House, the vote was 215-205, with 10 Republicans joining Democrats in opposing the measure.

The ad industry and broadband carriers lobbied heavily against those rules, arguing that the regulations subjected Internet service providers to tougher standards than Google, Facebook or other online companies. Those other companies typically allow consumers to opt out of receiving targeted ads, but only require opt-in consent before serving ads based on a narrow category of "sensitive" data -- like financial account numbers, or health information.

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But privacy advocates countered that broadband providers weren't comparable to search engines, social networking services or other Web publishers. Advocates pointed out that only Internet service providers have access to all unencrypted sites visited by subscribers, and that many consumers have no choice about which ISP to use.

Groups representing advertisers and Internet service providers are sounding a triumphant note today. The Association of National Advertisers called the repeal "an important major step to help assure a level playing field for privacy regulation for all businesses."

The USTelecom likewise cheered news of the repeal, stating that the rules "would have created a confusing and conflicting consumer privacy framework."

But even without last year's rules, broadband providers cannot necessarily do whatever they wish with subscribers' Web-browsing data. For one thing, the Telecommunications Act still requires carriers to protect customers' confidential information. Without the FCC's regulations, it's not clear how to interpret that mandate, but there's a good argument that selling an individual subscribers' entire Web-browsing history on a personally identifiable basis would violate it.

Also, George Washington University law professor Orin Kerr suggested this morning on Twitter that the wiretap law could also curb Internet service providers. "Odd thing about repeal of FCC broadband privacy reg: Much of what repeal is supposed to allow is likely illegal under the Wiretap Act," he tweeted.

What's more, broadband providers could have to deal with a new array of state privacy laws. Last week, lawmakers in Minnesota approved a measure that would require Internet service providers to obtain subscribers' written consent before collecting their personal information -- a term that the bill sponsor says includes Web-surfing data. In Montana, legislators voted on Monday to prohibit the state from awarding contracts to Internet providers that gather data from subscribers without their permission. Neither state has finalized those measures.

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