Republicans in Congress are eyeing a repeal of privacy rules for internet providers passed by the Federal Communications Commission that, if passed, could leave some free of any privacy oversight at all.
Arizona Republican Sen. Jeff Flake said this week he’s planning to propose using the Congressional Review Act (CRA) to repeal the rules passed by the Federal Communications Commission in October. The rules ban providers like Comcast and Verizon from collecting and monetizing virtually any subscriber information without prior user permission, including browsing history and app usage.
A CRA resolution would let Congress eliminate the agency’s rules with a simple majority vote and block the FCC from passing similar rules in the future. According to some Democrats and even Republicans at other agencies, that could leave some providers in a privacy gap free from oversight based on an outdated law.
“We would be left with neither the FCC nor the FTC having any jurisdiction over privacy,” Hawaii Democrat Sen. Brian Schatz said in Politico. “There’s nobody reasonable who thinks that neither agency should have jurisdiction.”
That’s the result of a ruling last year in the Ninth Circuit Court of Appeals. The ruling, based on an outdated law meant to divide the agencies’ jurisdictions, bars the Federal Trade Commission from bringing enforcement action against companies acting as common carriers. The FCC reclassified internet providers as common carriers, a public utility designation, in net neutrality rules passed in 2015, which the privacy rules are based on.
Before net neutrality, internet providers fell under FTC jurisdiction. That means a straight repeal of the rules would potentially leave any company with even a side business as a common carrier, like Google with Google Fiber, free from privacy oversight.
Acting Republican FTC Chairwoman Maureen Ohlhausen agreed in an interview shortly after President Donald Trump’s inauguration in January. Ohlhausen described the issue as “a problem for the FTC and for consumers” that goes beyond telecommunications.
“Say for example you have a common carrier who decided to sell dietary supplements,” she said. “The FCC isn’t going to be there policing over dietary supplements, but this could divest the FTC of oversight over them as well.”
House Communications and Technology Subcommittee Chairwoman Marsha Blackburn, who’s heading up a repeal of the rules on the House side, said last week any repeal would seek to close any gap, but didn’t detail how that could be accomplished.
“I would think there would be way to work through that so you don’t have a gap in oversight,” she said.
The biggest internet service providers in the U.S. began lobbying Congress to undo the rules, passed under the previous Democratic-led FCC, almost immediately after the election.
“Amongst other flaws, the FCC Order would create confusion and interfere with the ability of consumers to receive customized services and capabilities they enjoy and be informed of new products and discount offers,” they wrote to congressional leaders in January.
Democrats, led by Massachusetts Sen. Ed Markey, have vowed to oppose any effort to dismantle net neutrality rules passed under the previous administration.
“Big broadband companies want to mine and sell consumers’ most sensitive personal information without any consent,” Markey said Thursday. “Without the FCC’s broadband privacy rule, broadband providers will be able to sell dossiers of the personal and professional lives of their subscribers to the highest bidder without their consent.”
Since taking the top office last month Republican FCC Chairman Ajit Pai, who voted against the privacy rules, hasn’t said if he’ll enforce the rules or roll them back at the agency level.
