Congressional Move to Invalidate Privacy Regs Introduced

Sen. Flake following through on promised move

Sen. Jeff Flake March 8 has introduced a Congressional Review Act (CRA) resolution to invalidate the FCC's broadband privacy rules, according to a source.

According to copy of the resolution, it is short and to the point, saying: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that Congress disapproves the rule submitted by the Federal Communications Commission relating to 'Protecting the Privacy of Customers of Broadband and Other Telecommunications Services,' and such rule shall have no force or effect."

The resolution has 21 co-sponsors, all Republicans, including Commerce Committee Chairman John Thune (R-S.D.) and Communications Subcommittee chair Roger Wicker (R-Miss.). House Communications Subcommittee chair (Marsha Blackburn (R-Tenn.) also supports a resolution to roll back the regs.

Flake got a shout-out from consumer technology companies for the resolution.

"Late last year, and over many objections, the FCC adopted privacy rules for broadband and telecommunications services related to its broader Open Internet Order. While these rules apply only to internet service providers, they could establish a dangerous precedent for the entire internet, the innovation it enables and the myriad of American jobs it creates," said CTA President Gary Shapiro.

"Sen. Flake's resolution will reverse the FCC's broad regulatory overreach and restore certainty and consistency with privacy guidelines established by the Federal Trade Commission. We thank the senator for recognizing that the FCC rules threaten to undermine innovation and competition within the vibrant internet ecosystem, and fighting to help ensure the current and future viability of a vibrant internet - one that immensely benefits consumers and the U.S. economy."

That shout-out came on the eve of a Senate Commerce Committee FCC oversight hearing featuring FCC chairman Ajit Pai and the other commissioners.

FCC Chairman Ajit Pai, with the help of fellow Republican Michael O'Rielly, has already stayed implementation of the data security portion of the rules, which was to have gone into effect March 2, and has signaled he wants to rewrite them. Flake wants to give him a clean slate to start from.

21st Century Privacy Coalition Co-Chairs former FTC Chairman Jon Leibowitz and former US Rep. Mary Bono released the following statement commending Senator Jeff Flake for today initiating a resolution under the Congressional Review Act seeking disapproval of the FCC’s flawed broadband privacy rules:

“We commend Senator Flake for introducing the resolution of disapproval rejecting the FCC's privacy rules," said 21st Century Privacy Coalition co-chairs Jon Leibowitz [former Obama FTC chairman] and Mary Bono [former House member]. "The rules deviate substantially from the FTC's successful privacy model and are fatally flawed. The 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."

Pai and acting FTC chair Maureen Ohlhausen have said that would be harmonizing the FCC authority over broadband privacy with the FTC's over edge providers in the near term, with the eventual goal of returning oversight of broadband privacy to the FTC, which will happen when and if the FCC reverses its classification of ISPs as common carriers under Title II--the FTC is excluded from regulating common carriers.

But there were plenty of foes as well as fans.

“I am dismayed that Republicans are using a scorched earth strategy to undermine Americans’ privacy online," said Energy and Commerce Committee Ranking Member Frank Pallone, Jr. (D-N.J.). "This procedural gimmick wouldn’t just roll back the FCC’s current broadband privacy rules, it would hamstring the agency.  I urge my colleagues on both sides of the aisle to oppose this plan devised by big corporate interests and instead protect the American people.”

“Today, the Senate introduced its first major telecommunications bill under the new administration, and it’s targeting online consumer privacy," said Dallas Harris, policy fellow at Public Knowledge. "Senator Flake has proposed using the Congressional Review Act to completely eliminate the rules that the FCC put in place to protect the information internet providers collect about subscribers, but removing these rules leaves consumer data vulnerable....Senator Flake and some of his colleagues seek to wipe out consumers’ rights to control personal data. Passing this bill will leave a huge gap in consumer privacy protections with no end in sight, and no future relief from the FCC. This is a part of a broader assault on consumer privacy from congressional members when combined with legislative proposals to weaken the FTC’s ability to protect consumers."

“Big broadband barons and their Republican allies want to turn the telecommunications marketplace into a Wild West where consumers are held captive with no defense against abusive invasions of their privacy by internet service providers,” said Sen. Ed Markey (D-Mass.). “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. I strongly oppose this resolution, and will fight to ensure that consumers, not broadband companies, have control over their personal, sensitive information.”

"Sen. Jeff Flake’s effort to dismantle the recently enacted FCC privacy regulation  protecting consumers from greedy invasive overreach by Internet service providers like Comcast and Verizon shreds carefully crafted rules that were fair to business and consumers alike.  Ultimately this action — if successful — will undermine users' trust in the Internet and damage the entire ecosystem," said John M. Simpson, privacy project director for Consumer Watchdog. "If successful, Flake and his co-sponsors will produce a losing situation for all.  Consumers will lose their privacy and business will lose the essential trust of their customers.  What can Flake and his colleagues possibly be thinking? I can only hope the CRA attempt can be blocked in the Senate."

“OTI has long advocated for strong broadband privacy protections and supports the rules adopted by the FCC last year. With a proposed CRA, Senator Flake has signaled a sledgehammer approach to fully repeal those rules," said Eric Null, policy counsel at the Open Technology Institute. "This measure would leave consumers without effective privacy protections and prevent the FCC from enacting meaningful privacy rules in the future. The CRA does not simply force the FCC to go back to the drawing board — it takes the drawing board away completely.”

“If this CRA is passed, neither the FCC nor the FTC will have clear authority when it comes to how Internet Service Providers protect consumers’ data privacy and security," said Sen. Brian Schatz (D-Hawaii), ranking member of the Senate Communications Subcommittee. "Regardless of politics, allowing ISPs to operate in a rule-free zone without any government oversight is reckless.

“If Senate Republicans were serious about solving the very real challenges surrounding data security and privacy, they would call for a debate that considers the roles and responsibilities of both the FCC and FTC and propose legislation that protects consumers while enabling innovation. Instead, they are using a mechanism that forever prevents the FCC from exercising its rule-making authority in these areas without offering an alternative plan..."

"Americans face the loss of their only real privacy protection online if the Senate passes the Congressional Review Act resolution that would disapprove the recently enacted FCC consumer privacy safeguards.  The Republican leadership—working on behalf of the nation’s largest cable and phone companies—wants to strip Americans of important protections on how their most sensitive information can be used," said Jeff Chester, executive director of the Center for Digital Democracy. "If the Senate passes the CRA and kills privacy protection for Americans, it sends a signal—to consumers, our allies and trading partners abroad—that our country is abandoning a critical 21st Century civil and human right."