Congress Likely to Advance ISP Privacy CRA After Recess, Blackburn Says
Congress is still likely to advance a Congressional Review Act resolution of disapproval to take down the FCC’s ISP privacy rules and probably will do so the week of Feb. 27, House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., told us Thursday. She initially had expected a resolution as soon as this week (see 1702070074), which didn’t happen. “We’re working on it,” Blackburn said. “I had hoped to have it wrapped up by today but they’ve been busy with other things in the Senate.”
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Sen. Jeff Flake, R-Ariz., chairman of the Judiciary Privacy Subcommittee, is preparing his own CRA resolution in that chamber and gathering support this week, promising an introduction soon (see 1702150056). Congress will be in recess next week and return the week after. The CRA will “probably” be filed and ready to advance that week, Blackburn said: “We’re trying to get it finished up now.” A Senate aide confirmed Flake didn't file the resolution Thursday.
Senate Commerce Committee Chairman John Thune, R-S.D., declined to say whether he’s backing the resolution as a co-sponsor. “He’s working on it, yeah,” Thune said in an interview Thursday. “We’re addressing that issue and want to do it in the best way we can. And I know there’s a lot of interest among our members here in the CRA approach, as there is in the House. So we’re following those developments and we’ll see where it goes.”
The CRA would not only kill the FCC’s rules but also prevent the agency from developing similar ones in the future. It would require a only simple majority in the Senate, unlike most legislation, which requires 60 votes to break a filibuster.
The Senate could pass the resolution given the different requirements of the tool, said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii. “I’ve learned since 2016 not to predict, but sure, I think it’s possible,” he told reporters Thursday.
Schatz first slammed the idea last month, and on Wednesday raised the recent 9th U.S. Circuit Court of Appeals' ruling that the FTC lacked jurisdiction over AT&T for data throttling. Using a CRA would create a privacy oversight void, he said. ISP officials said the FCC would still have enforcement authority under Communications Act Section 222, even without the rules (see 1702090070).
“I think it would be a terrible idea because after the 9th Circuit decision, we would be left neither the FTC nor the FCC having jurisdiction over privacy,” Schatz told reporters Thursday. “And wherever you fall on the policy issues related to privacy, there’s nobody reasonable that thinks that neither agency should have jurisdiction.”
Sen. Ed Markey, D-Mass., also criticized possible CRA use. "Big broadband companies want to mine and sell consumers’ most sensitive personal information without any consent," he said in a statement Thursday. "Overturning broadband privacy protections is nothing more than Big Broadband’s way of pumping up its profits and undermining consumer rights. Without the FCC’s broadband privacy rule, broadband providers will be able to sell dossiers of the personal and professional lives of their subscribers to the highest bidder without their consent.”
“We want to use what we think is the best way to get the result, and that is to move away from where we have two systems of rules that we think confuse consumers and aren’t good for them in the long run,” Thune said of GOP thinking.