Here’s How Republicans Aim to Kill FCC Rules Protecting Consumer Privacy

The nation's largest broadband companies, including Comcast, AT&T and Verizon, hate federal rules approved last year that require them to obtain "opt-in" consent before using, sharing, or selling private consumer data.

For the last several months, the broadband industry has been furiously lobbying the Federal Communications Commission and lawmakers in Congress to kill the privacy policy. As it turns out, two dozen Republican senators are more than willing to oblige and do the bidding of these corporate giants.

Sen. Jeff Flake, the Arizona Republican, introduced a resolution on Tuesday that would roll back the FCC's privacy policy, drawing howls of protest from consumer privacy watchdogs. And because Flake is deploying a rarely-used legislative vehicle called the Congressional Review Act, which cannot be filibustered, there is virtually nothing Democrats can do to stop him.

In a statement, Flake, who has more than 20 GOP co-sponsors, said the FCC's privacy policy is "unnecessary, confusing and adds yet another innovation-stifling regulation to the internet."

Flake's action, which was expected, is just the latest attempt by the Trump administration and its Republican allies in Congress to undermine and eliminate scores of regulations across broad swaths of the economy that protect the environment, public health, and consumer welfare.

Consumer advocates blasted Flake's resolution as a disingenuous give-away to the broadband industry that will leave consumers vulnerable to the predations of internet service providers (ISPs) desperate to "monetize" sensitive consumer data to fatten their bottom lines.

"The broadband privacy rule was an important victory for internet users," Nathan White, Senior Legislative Manager at Access Now, a leading digital rights group, said in a statement. "Customers pay for access to the internet, but broadband providers want to collect personal data and sell it to make a second profit off their users."

Last week, President Trump's recently installed FCC chief, Republican Ajit Pai, moved to halt one piece of the privacy policy—a key data security rule requiring ISPs to take "reasonable measures" to protect consumer information from "unauthorized use, disclosure, or access."

Flake's CRA resolution goes much further, and scraps the entire FCC privacy package, including the central rule that requires ISPs to obtain "opt-in" consent from consumers before using or selling sensitive user data, including online browsing activity, mobile app data, and emails and online chats.

"If the sponsors of this resolution were serious about protecting your private information on the internet, the last thing they'd do is move to dismantle rules protecting it from unauthorized use and abuse by cable and phone companies," Matt Wood, Policy Director at DC-based public interest group Free Press, said in a statement.

The Congressional Review Act, which was passed in 1996 as part of former GOP House Speaker Newt Gingrich's so-called "Contract With America," is an extremely rare legislative maneuver. Until last month, it had only been deployed successfully once, to overturn a Clinton administration ergonomics rule in 2001. Now, Republicans are using the CRA to target dozens of federal regulations protecting the environment, consumers, and public health.

Flake's use of the CRA to kill the FCC's privacy policy is doubly alarming to consumer advocates, because under the terms of the CRA, once it is used to scrap a particular regulation, the relevant agency is prohibited from issuing a "substantially similar" regulation in the future. As a result, Flake's resolution will indefinitely remove the FCC's ability to protect consumer privacy.

"Passing this bill will leave a huge gap in consumer privacy protections with no end in sight, and no future relief from the FCC," Dallas Harris, Policy Fellow at DC-based digital rights group Public Knowledge, said in a statement.

The nation's largest broadband companies argue that because the FCC's privacy policy doesn't apply to websites like Google and Facebook, which are regulated by the Federal Trade Commission (FTC), the FCC's policy puts ISPs at a competitive disadvantage relative to the Silicon Valley giants.

This "level playing field" argument has been parroted by Republicans at the FCC and in Congress. But consumer advocates say this is just a smokescreen intended to justify the elimination of rules designed to protect consumers.

"Lawmakers claim they just want to make sure that all internet companies play by the same rules," said Matt Wood, of Free Press. "But instead of moving in Congress to strengthen the privacy laws that apply to every company on the internet, these senators propose ditching the current law and letting ISPs profit more easily off of your private data."

Flake's resolution must be approved by a simple majority of both houses of Congress. It will then be sent to the White House, where President Trump is very likely to sign it.

Subscribe to pluspluspodcast , Motherboard's new show about the people and machines that are building our future.