Republicans in both chambers of Congress are moving ahead with a permanent privacy rules repeal for internet providers passed by the Federal Communications Commission.
The House of Representatives introduced late Wednesday its proposal to wipe out the rules with the Congressional Review Act. Representatives’ proposal comes just days after the Senate’s and would prohibit the FCC from enacting similar rules in the future.
Net neutrality opponent and Tennessee Rep. Marsha Blackburn introduced the House proposal as a way to return privacy regulation to the Federal Trade Commission.
“The FCC’s decision last October to unilaterally swipe jurisdiction from the FTC by creating its own privacy rules for ISPs was troubling,” Blackburn said Thursday. “The FTC has been our government’s sole online privacy regulator for over twenty years. A dual regulatory approach will only serve to create confusion within the internet eco-system and harm consumers.”
Passed under the Obama administration’s FCC 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. The new Republican majority at the agency stayed the rules shortly before they were scheduled to take effect last week as part of their plan to deconstruct broader net neutrality rules passed in 2015.
Blackburn described the move as a bipartisan proposal, but Democrats including Massachusetts Sen. Ed Markey disagree. The senator from the Bay State decried the privacy rules repeal as a return to a “Wild West” of data privacy infringement by internet providers.
“The Republican’s assault on the Open Internet Order continues, and the FCC’s broadband privacy rules are their next target,” Markey said Thursday. “Regrettably, Republicans fail to accept what we all know to be true and what the courts have already affirmed: broadband internet is an essential telecommunications service, just like telephone service.”
He added “just as phone companies cannot sell information about Americans’ phone calls, an internet service provider should not be allowed to sell sensitive consumer information without affirmative consent.”
Critics of the rules say they disadvantage the service provider half of the internet ecosystem, while edge providers — including big data giants Facebook and Google — have fewer restrictions on collecting and monetizing user data under FTC rules. Providers themselves warn forcing them to get subscriber consent before collecting data will likely make the cost of service go up.
Proponents of the repeal say the FCC can still regulate privacy via Section 222 of the Communications Act. The provision sets down lighter restrictions on what telephone providers can do with customer proprietary network information.
FCC Chairman Ajit Pai and acting FTC Chairwoman Maureen Ohlhausen support a return to the FTC regime, but a recent federal court ruling could make that problematic.
The FTC is barred under law from regulating common carriers — a public utility classification used to break up telephone monopolies. The FCC reclassified broadband providers as Title II common carriers in the 2015 Open Internet Order, a legal maneuver to ensure net neutrality rules in the order could withstand a court challenge.
Last August, the FTC lost a legal battle against AT&T over deceptive practices related to the carrier’s unlimited data plans. AT&T argued the FTC couldn’t take action against it because of its common carrier status, and the court agreed. The ruling could make it difficult for the FTC to enforce privacy rules over companies like Google, which providers broadband service via Google Fiber, or Verizon because of its status as a telephone provider.
Both Ohlhausen and Blackburn have acknowledged the issue, but have yet to act on solutions like removing the FTC’s common carrier exemption, which would require legislation from Congress.