Earlier this month, we told you about a Senate bill that would undo what had been deemed overreaching “midnight regulations” by the Federal Communications Commission (FCC) that were aimed at protecting consumer privacy. Today, the Senate voted along party lines (50-48) to kill the FCC measure that would require ISPs to gain consent before sharing customers' browsing data.
The bill was authored by Senator Jeff Flake (R-AZ), Chairman of the Senate Judiciary Subcommittee on Privacy, Technology and the Law. The vote to dismantle the FCC’s privacy rules was the result of the Congressional Review Act, which gives Congress the power to scrap nascent rules that have been passed by federal agencies. If the measure passes the House (which it is expected to do), the FCC would be forbidden from crafting similar rules in the future.
The original FCC action, which took place under the Obama administration, has come under fire from Republicans as being unnecessary and unfair to cable and telecom companies. They argued that the rules would disadvantage ISPs compared to companies like Facebook and Google (also big trackers of consumer data), which have their actions policed by the Federal Trade Commission (FTC).
“The FCC's midnight regulation does nothing to protect consumer privacy. It is unnecessary, confusing, and adds yet another innovation-stifling regulation to the Internet,” said Flake earlier this month. “My resolution is the first step toward restoring the FCC's light-touch, consumer-friendly approach. It will not change or lessen existing consumer privacy protections. It empowers consumers to make informed choices on if and how their data can be shared.”
Needless to say, the NCTA-The Internet & Television Association was elated about the bill’s passage in the Senate. “The Senate’s action represents a critical step towards reestablishing a balanced framework that is grounded in the long-standing and successful FTC privacy framework that applies equally to all parties operating online,” said the telecommunications lobbying group. “Our industry remains committed to offering services that protect the privacy and security of the personal information of our customers. We support this step towards reversing the FCC’s misguided approach and look forward to restoring a consistent approach to online privacy protection that consumers want and deserve.”
The FCC originally authored the rules, which were passed in a 3-2 vote along party lines, to require internet service providers (ISPs) to gain consent from customers before sharing or selling web browsing data and other identifiable information with third-parties. Then FCC Chairman Tom Wheeler lamented the fact that “there are currently no rules in place outlining how ISPs may use and share their customers’ personal information.”
Former FCC Chairman Tom Wheeler
“[Your ISP has a] broad view of all of your unencrypted online activity – when you are online, the websites you visit, and the apps you use. If you have a mobile device, your provider can track your physical location throughout the day in real time,” said Wheeler back in October 2016. “Even when data is encrypted, your broadband provider can piece together significant amounts of information about you – including private information such as a chronic medical condition or financial problems – based on your online activity.”
At face value, this seems like a big step backwards for consumer privacy, and Senate Democrats are not happy at all about the reversal. “This resolution is a direct attack on consumer rights, on privacy, on rules that afford basic protection against intrusive and illegal interference with consumers' use of social media sites and websites that often they talk for granted,” said Senator Richard Blumenthal (D-CT).