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March 30 2017

Congress Scraps Obama-Era Privacy Rules

by Patrice L. Onwuka

Should AT&T, Comcast, and Verizon have to ask your permission before collecting data such as your web browsing history and sharing or selling it to advertisers?

Yesterday, Congress voted to cancel regulations that would have gone into place requiring stricter privacy rules from internet providers. These regulations were ordered by the previous Obama-appointed chairman of the Federal Communications Commission (FCC), Tom Wheeler. The vote followed similar action by the Senate last week. The bill goes to President Trump’s desk for signature or approval. Given that the White House issued a statement in support of the House’s action, we can expect this repeal to go through.

In votes largely along party lines, Congress once again used the Congressional Review Act (CRA) to overturn Obama-era rules. In this case, it was to ensure that the new FCC privacy requirements would not go into effect and to ensure that the FCC can’t issue similar regulations in the future.

Opponents of the added privacy rules say they would have stifled innovation, added costs, and created winners and losers treating internet providers differently than online companies like Google and Facebook. As we’ve reported, Republicans view the FCC’s privacy rules as infringing on the domain of the Federal Trade Commission, which should and already does regulate privacy practices.

Rep. Michael Burgess (R-Texas) said the FCC rules "unfairly skew the market" toward social networks and search engines, which would have more ability to collect and use customer information for personalized advertising.

"The Federal Communications Commission privacy rule arbitrarily treats Internet service providers differently from the rest of the Internet," he said, calling the rules an example of "government intervention in the free market."

[Rep. Marsha] Blackburn said the FCC rulemaking was "just another example of big government overreach." She also said that the FCC "unilaterally swiped jurisdiction from the Federal Trade Commission."

Democrats were quick to paint overturning these rules as selling Americans' privacy:

"I have a simple question: what the heck are you thinking?" Rep. Michael Capuano (D-Mass.) said in debate on the House floor... "Just last week I bought underwear on the Internet. Why should you know what size I take or the color?" Capuano said. ISPs could take that information and sell it to underwear companies who might show him advertisements, he said.

"Americans' private browsing history should not be up for sale," Pelosi said. "Overwhelmingly the American people do not agree with the Republicans that this information should be sold," Pelosi also said.

The new FCC commissioner Ajit Pai voted against the privacy order and agreed that privacy rulemaking should rest with the FTC.

To be clear, these rules had not gone into place, but would have kicked in this December.  The heated rhetoric on both sides, but particularly the left to paint Republican efforts as selling America overlooks the fact that privacy rules are already in place and being enforced by the FTC.

In an NPR interview one expert admits that the FTC has generally been aggressive about enforcement of privacy rules:

The FTC has generally been the lead privacy enforcer, and I think has been very aggressive at doing so. If you look at the recent Vizio case, they were able to take very strong action against sharing of your viewing history...

At the end of the day, the willingness of the FCC and the FTC to use their authority effectively is what will determine whether the consumers are protected. The FCC (has in the past) used even its high-level authority very aggressively, and the FTC certainly historically has. We obviously don't know exactly how the new chairs will. ...

Protecting our privacy is a critical goal and there’s an argument to made that the FCC rules wouldn’t have been that much more effective. As users, we know that there are tools we can use to limit what companies see and then market to us.

This is a chance though for the FCC and FTC to work together to ensure that the online privacy of our browsing history and personal information is protected, but there’s no need to waste the resources of two federal agencies to create the same rules. Now, if there is a gap in privacy, this heightened scrutiny creates the right opportunity for the FTC to look at what can or should be done.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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