Late yesterday, President Trump signed legislation revoking broadband privacy rules adopted by the Federal Communications Commission (FCC). The rules would have kept consumers in control of their information online. Instead, internet service providers (ISPs) are free to collect, archive, and share at will without notice nor consent information about consumers' online activities (e.g., far more than browsing histories).
The legislation narrowly passed both in the Senate (50 - 48) and in the House (210 - 205). Proponents of the legislation claimed duplicate legislation. Representative Marsha Blackburn (R-Tenn.), who introduced the legislation in the House, said plenty recently according to Breitbart News:
"What we are doing is recalling a privacy rule that the FCC issued right at the end of the Obama administration, and the reason we are doing this is because it is additional and duplicative regulation... What the FCC did was clearly overreach. It gives you two sets of regulators that you’re trying to comply with, not one. So we are recalling the FCC’s rule, and that authority will go back to the FTC...”
"What the Obama administration did... they reclassified your Internet service as Title II, which is a common carrier classification. It is the rule that governs telephone usage... Those rules were put on the books in the thirties. So what the Democrats did... they reclassified Internet, which is an information service, as a telephone service, and then put those 1930s-era rules on top of your Internet service... They did that so they could tax it, so they could begin to regulate it..."
"You don’t need another layer of regulation. It’s like flashing alerts: We don’t need net neutrality. We don’t need Title II. We don’t need additional regulations heaped on the Internet under Title II. The Internet is not broken. It has done just fine without the government controlling it."
Not broken? The founder of the internet, Tim Berners-Lee gave three solid reasons why the internet is broken. His number one reason: consumers have lost control over their personal information.
And, Representative Blackburn either doesn't know history or has chosen to ignore it. Several problems have plagued the industry: a lack of ISP competition in key markets, consumers in the United States pay more for broadband and get slower speeds compared to other countries, and numerous privacy violations and lawsuits:
- 13,000 Complaints Submitted By Consumers About Comcast's Usage Based Internet Pricing
- Verizon WIreless Settles With the FCC Regarding 'Supercookies' And Online Tracking
- Attorney General Invites New York State Residents To Check Their Internet Speed
- Customers Sue Internet Service Provider For Failing To Provide Promised Broadband Speeds
- Filing Supports Claims That ISPs Already Throttle And Violate Net Neutrality Rules
- 4 Reasons Why Your Internet Access Is Expensive And Slow... And Could Get A Lot Worse
- Several Internet Service Providers Hijack And Replace Consumers' Search Results
- SIMON Says... DON'T SPY!
- ISPs Begin To Spy And Abuse Consumer Privacy
- Under Pressure From Congress, ISP Admits To Secret Snooping In Kansas
Clearly, the FCC had to act, it did, it held hearings, and then finalized improved broadband privacy rules to help consumers. Now, the Congress and President undid all of that.
There are plenty of consequences. To regain some online privacy lost due to the new legislation, many consumers have considered Virtual Private Networks (VPNs) and other online tools to prevent ISPs from spying on them. VPNs are not a cure-all. ISPs can still block or throttle consumers' VPN connection, and VPNs won't protect e-mail nor internet-of-things devices installed in homes.
Basically, there is no substitute for consumers being in control of their online privacy with transparent notice by ISPs. The impact upon consumers: less online privacy and higher internet prices. Consumers are forced to spend more money on VPN and other tools.
Blackburn and others claimed that the U.S. Federal Trade Commission (FTC) should regulate ISPs. Regulation by the FTC is not a slam-dunk. AdAge reported:
"If the FTC does regain its oversight, the result is likely to be weaker privacy protections than what the FCC intended with its rules, as well as a relatively clear path for telcos to pursue their data-revenue-generating goals... One legal peak to climb: precedent set by a U.S district court ruling siding with AT&T against the FTC last year which carved out an exemption for companies that provide bundled phone and ISP services which effectively protected AT&T from FTC regulations protecting consumers from unfair or deceptive practices.
Even if the FTC eventually garners ISP jurisdiction, argued [Gigi Sohn, a senior counselor to former FCC Chairman Tom Wheeler], "it will lead to some privacy protection but much weaker than what people just lost." She pointed to FTC Chairman Ohlausen's high bar for showing harm against consumers before actions against companies are taken, noting, "She wants to see harm first. Well, rules protect you before you're harmed." "
Despite the claims by Blackburn and others, the bottom line is:
"... what we're left with is a period of uncertainty where the carriers may do certain things but it's unclear. Does the FCC have jurisdiction or does the FTC have jurisdiction?"
"The FTC is empowered to bring lawsuits against companies that violate its privacy guidelines, but it has no authority to create new rules for industry. It also cannot enforce its own guidelines against Internet providers because of a government rule that places those types of companies squarely within the jurisdiction of the FCC and out of the reach of the FTC. As a result, Internet providers exist in a "policy gap" in which the only privacy regulators for the industry operate at the state, not federal, level, analysts say."
Ambiguity. Lack of clarity. Policy gap. None of those are good for business, or for consumers.