Cable, Telecom And Advertising Lobbies Ask Congress To Remove FCC Broadband Privacy Rules

The Association of National Advertisers (ANA) and 15 other cable, telecommunications, advertising lobbies sent a letter on January 27, 2017 to key leaders in Congress urging them to repeal the broadband privacy rules the U.S. Federal Communications Commission (FCC) adopted in October 2016 requiring Internet service providers (ISPs) to protect the privacy of their customers. 15 advertising and lobbyist groups co-signed the letter with the ANA: the American Cable Association, the Competitive Carriers Association, CTIA-The Wireless Association (formerly known as the Cellular Communications Industry Association), the Data & Marketing Association, the Internet Advertising Bureau, the U.S. Chamber of Commerce, the U.S. Telecom Association, and others.

The letter, available at the ANA site and here (Adobe PDF; 354.4k), explained the groups' reasoning:

"Unfortunately, in adopting new broadband privacy rules late last year, the Federal Communications Commission (“FCC”) took action that jeopardizes the vibrancy and success of the internet and the innovations the internet has and should continue to offer. While the FCC’s Order applies only to Internet Service Providers (“ISPs”), the onerous and unnecessary rules it adopted establish a very harmful precedent for the entire internet ecosystem. We therefore urge Congress to enact a resolution of disapproval pursuant to the Congressional Review Act (“CRA”) vitiating the Order.

Adopted on a party-line 3-2 vote just ten days before the Presidential election, over strenuous objections by the minority and strong concerns expressed by entities throughout the internet ecosystem, the new rules impose overly prescriptive online privacy and data security requirements that will conflict with established law, policy, and practice and cause consumer confusion... 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. Further, the Order would also result in consumers being bombarded with trivial data breach notifications."

Data breach notifications are trivial? After writing this blog for almost 10 years, I have learned they aren't. Consumers deserve to know when companies fail to protect their sensitive personal information. Most states have laws requiring breach notifications. It seems as these advertising groups don't want to be responsible nor held accountable.

The Hill explained the CRA and how it usually fails:

"The Congressional Review Act (CRA) has only worked precisely one time as a way for Congress to undo an executive branch regulation... The CRA was passed in 1996 as part of then-Speaker Newt Gingrich's (R-Ga.) "Contract with America." While executive branch agencies can only issue regulations pursuant to statutes passed by Congress, Congress wanted to find a way to make it easier to overturn those regulations. Previously there was a process by which, if one house of Congress voted to overturn the regulation, it was invalidated. This procedure was ruled unconstitutional by the Supreme Court in 1983.

Congress was still able to overturn an executive branch regulation by passing a law. Passing a law is, of course, subject to filibusters in the Senate. We've learned that the filibuster in recent years has made it quite difficult to pass laws. The CRA created a period of 60 "session days" (days in which Congress is in session) during which Congress could use expedited procedures to overturn a regulation.

Also on January 27, several consumer privacy advocates sent a letter (Adobe PDF) to the same Congressional representatives. The letter, signed by 20 privacy advocates including the American Civil Liberties Union, the Center for Democracy and Technology, the Center for Media Justice, Consumers Union, the National Hispanic Media Coalition, the Privacy Rights Clearing House, and others urging the Congressional representatives:

"... to oppose the use of the Congressional Review Act (CRA) to adopt a Resolution of Disapproval overturning the FCC’s broadband privacy order. That order implements the mandates in Section 222 of the 1996 Telecommunications Act, which an overwhelming, bipartisan majority of Congress enacted to protect telecommunications users’ privacy. The cable, telecom, wireless, and advertising lobbies request for CRA intervention is just another industry attempt to overturn rules that empower users and give them a say in how their private information may be used.

Not satisfied with trying to appeal the rules of the agency, industry lobbyists have asked Congress to punish internet users by way of restraining the FCC, when all the agency did was implement Congress’ own directive in the 1996 Act. This irresponsible, scorched-earth tactic is as harmful as it is hypocritical. If Congress were to take the industry up on its request, a Resolution of Disapproval could exempt internet service providers (ISPs) from any and all privacy rules at the FCC... It could also preclude the FCC from addressing any of the other issues in the privacy order like requiring data breach notification and from revisiting these issues as technology continues to evolve in the future... Without these rules, ISPs could use and disclose customer information at will. The result could be extensive harm caused by breaches or misuse of data.

Broadband ISPs, by virtue of their position as gatekeepers to everything on the internet, have a largely unencumbered view into their customers’ online communications. That includes the websites they visit, the videos they watch, and the messages they send. Even when that traffic is encrypted, ISPs can gather vast troves of valuable information on their users’ habits; but researchers have shown that much of the most sensitive information remains unencrypted. The FCC’s order simply restores people’s control over their personal information and lets them choose the terms on which ISPs can use it, share it, or sell it..."

The new FCC broadband privacy rules kept consumers in control of their online privacy. The new rules featured opt-in requirements allowing them to collect consumers' sensitive personal information only after gaining customers' explicit consent.

So, advertisers have finally stated clearly how much they care about protecting consumers' privacy. They really don't. They don't want any constraints upon their ability to collect and archive consumers' (your) sensitive personal information. During the 2016 presidential campaign, candidate and now President Donald Trump promised:

"One of the keys to unlocking growth is scaling-back years of disastrous regulations unilaterally imposed by our out-of-control bureaucracy. In 2015 alone, federal agencies issued over 3,300 final rules and regulations, up from 2,400 the prior year. Every year, over-regulation costs our economy $2 trillion dollars a year and reduces household wealth by almost $15,000 dollars. Mr. Trump has proposed a moratorium on new federal regulations that are not compelled by Congress or public safety, and will ask agency and department heads to identify all needless job-killing regulations and they will be removed... A complete regulatory overhaul will level the playing field for American workers and add trillions in new wealth to our economy – keeping companies here, expanding hiring and investment, and bringing thousands of new companies to our shores."

Are FCC rules protecting your privacy "over-regulation," "onerous and unnecessary?" Are FCC privacy rules keeping consumers in control over their sensitive personal information "disastrous?" Will the Trump administration side with corporate lobbies or consumers' privacy protections? We shall quickly see.

There is a clue what the answer to that question will be. President Trump has named Ajit Pai, a Republican member of the Federal Communications Commission, as the new FCC chair replacing Tom Wheeler, the former chair and Democrat, who stepped down on Friday. This will also give the Republicans a majority on the FCC.

Pai is also an opponent of net neutrality rules the FCC has also adopted, which basically says consumers (and not ISPs) decided where consumers go on the Internet with their broadband connections. Republicans in Congress and lobby groups have long opposed net neutrality. In 2014, more than 100 tech firms urged the FCC to protect net neutrality. With a new President in the White House opposing regulations, some companies and lobby groups seem ready to undo these consumer protections.

What do you think?