Senate Moves to Take Up GOP Measure to Abolish FCC Privacy Rules

Under the FCC rules, “what matters isn’t what the data is but rather who uses it,” Flake said, dismissing multiple ways of regulating privacy at play now. He blasted what he sees as the current confusion and called the rules “a bad regulation,” favoring edge providers over broadband providers. The rules show "narrow preference of well-connected insiders," Flake said. "Using this CRA will not leave consumers unprotected," he added, citing Section 222 of the Communications Act and other federal and state laws.

Senate Commerce Committee ranking member Bill Nelson, D-Fla., took to the floor to oppose the resolution Wednesday. “Supporters of the joint resolution fail to acknowledge the negative impact that this resolution would have on the American public,” Nelson said, according to his prepared remarks. “This legislation will wipe away a set of reasonable, common-sense protections. It will open all of our internet browsing histories and application usage patterns up to exploitation for commercial purposes by broadband providers -- and third parties who will line up to buy this information. It will create a ‘privacy free’ zone for broadband companies -- with no federal regulator having effective tools to set rules of the road for collection, use, and sale of uniquely personal information. It will tie the hands of the FCC and eliminate its future ability to adopt clear, effective privacy and data security protections for broadband subscribers -- and in some cases, even telephone subscribers.” He warned against those wanting authority returned to the FTC, citing ongoing litigation. The FTC “now faces even more insurmountable legal obstacles to taking actions protecting broadband consumer’s privacy,” Nelson said. The FCC is "the only agency to which Congress has given statutory authority to adopt rules to protect broadband customers’ privacy" given the FTC "does not have rule making authority in data security," Nelson said.

The proposal, if ultimately signed into law, would prevent the FCC from developing substantially similar rules. In that scenario, Communications Act Section 222 would still apply, even absent implementing rules, FCC Chairman Ajit Pai and industry officials have said. Public interest groups call that untenable (see 1702090070). “This vote is coming about noon tomorrow,” Nelson said.

Tweetstorm

The chamber’s Democrats and public interest groups pushed back earlier Wednesday, linking the issue to broader net neutrality protections.

“@SenateGOP plans to vote this week to allow ISPs to sell your personal info to the highest bidder,” tweeted Sen. Ed Markey, D-Mass., a vocal opponent of the CRA bill. “Protect #BroadbandPrivacy.” Markey’s repeated tweets came among many others in a coordinated fashion Wednesday. “Under @SenateGOP bill, ISP would stand for Information Sold for Profit,” Markey said in another tweet. “First it’s #BroadbandPrivacy, then it’ll be #NetNeutrality. @SenateGOP wants no consumer protections for the internet.” He raised the issue before FTC commissioners during a subcommittee hearing Tuesday on fraud (see 1703220003). “Both the FTC and the FCC have an important role to play,” FTC Commissioner Terrell McSweeny told him. “I strongly support those [FCC] rules because they are consistent with what the FTC has required.”

“Care about protecting #NetNeutrality? @SenateGOP is pushing to end #BroadbandPrivacy protections for consumers,” Senate Minority Leader Chuck Schumer, D-N.Y., said on Twitter.

“Rolling back #BroadbandPrivacy benefits COMPANIES, **not** CONSUMERS,” tweeted Sen. Patrick Leahy, D-Vt. Other senators including Sens. Ron Wyden, D-Ore., Richard Blumenthal, D-Conn., Chris Murphy, D-Conn., and Jeff Merkley, D-Ore., tweeted condemning the CRA resolution. “I don't work for big corporations,” Sen. Al Franken, D-Minn., tweeted. “I work for you. So I'm pushing back against @SenateGOP efforts that would undermine #BroadbandPrivacy.” Sen. Elizabeth Warren, D-Mass., tweeted that Markey is right and the FCC regulations “protected consumers” through the rules “on how companies collect/use/share/sell our data.” The GOP “wants corporations, not consumers, to control personal information,” tweeted Sen. Tim Kaine, D-Va. Sen. Maria Cantwell, D-Wash., used the broadband privacy hashtag in touting the open internet protections. Broadband privacy “shouldn't be complicated,” tweeted Sen. Bernie Sanders, I-Vt. “Our information belongs to us, not Comcast and Verizon.” McSweeny tweeted that such a vote would be “unfortunate.”

Senate First

The Senate is moving on its resolution ahead of the House, where Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., is leading efforts. James Gattuso, a senior research fellow at the Heritage Foundation, told us he doesn't see much difference in which chamber acts first. “It is easier to get these things through the House rather than the Senate, because of the larger GOP majority in the House, and more restrictive rules,” said Gattuso, a former FCC official. “Removal of the filibuster as an option will certainly make things more interesting on the Senate side.” He noted that Pai seems to simultaneously be “moving ahead on this full speed.”

The CRA resolution has deep support among the GOP. Sen. Mike Rounds, R-S.D., joined this week as the 24th co-sponsor. Others include Majority Leader Mitch McConnell, R-Ky., Whip John Cornyn, R-Texas, and Commerce Committee Chairman John Thune, R-S.D. Markey earlier this year suggested some GOP senators aggressive on privacy may not back the measure, but many of the more privacy-minded GOP senators -- such as Sens. Rand Paul, R-Ky., Ted Cruz, R-Texas, and Mike Lee, R-Utah, all active in surveillance debates -- co-sponsor the proposal. Other Republican Senate offices not co-sponsoring the CRA are supportive, aides said before the vote. Sen. Rob Portman, R-Ohio, will support it, a spokesman said. So will Sen. Todd Young, R-Ind., a member of the Commerce Committee, an aide said. Sen. Thom Tillis, R-N.C., “strongly supports” the CRA resolution, a spokesman said. Whipping was underway Tuesday, Thune said then.

Public interest officials visited Senate offices early Wednesday to deliver what they said were 90,000 petition signatures opposing the CRA resolution. They came from the American Civil Liberties Union, Daily Kos, Demand Progress and Free Press. The six offices visited belonged to McConnell, Flake, Portman, and Sens. Cory Gardner, R-Colo., Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, said Free Press Policy Director Matt Wood.

“Industry representatives have been hitting both the Hill and the press hard trying to create an air of inevitability around the passage of a broadband privacy CRA in the Senate,” Free Press Policy Counsel Gaurav Laroia told us. “That the House is uncharacteristically waiting for the Senate to move first and that Senators Thune and Flake are still whipping Republicans shows that there's understandable reticence on their side to wipe away their constituents' privacy protections. We delivered tens of thousands of petitions this morning showing that people want to be able to control when and if their broadband ISPs sell and share their personal information like web-browsing history. If the CRA passes, I expect people will remember that this Congress' first major action on technology policy was to turn back the clock on consumer privacy.”

Consumers Union wrote senators Wednesday urging opposition to the CRA. “There is no question that consumers favor the FCC’s current broadband privacy rules,” the group said, citing a petition of support with 50,000 signatures. “Any removal or watering down of those rules would represent the destruction of simple privacy protections for consumers. Even worse, if this resolution is passed, using the Congressional Review Act here will prevent the FCC from adopting privacy rules -- even weaker ones -- to protect consumers in the future.” The Americans for Tax Reform, meanwhile, sent a letter to senators backing the measure. The commission’s “rules use our highly valued privacy as a tool to empower agency regulatory expansion at the expense of consumers,” said the letter signed by President Grover Norquist, arguing that the FCC is not needed in this space.