Last-Minute Lobbying Against Privacy CRA Resolution Takes Off Ahead of House Vote

The Senate voted 50-48 along party lines Thursday (see 1703230070) to approve the CRA resolution from Sen. Jeff Flake, R-Ariz., which the House is now taking up. House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., has 16 subcommittee Republicans as co-sponsors for her companion resolution. Spokespeople for privacy-minded House Republicans including Reps. Justin Amash of Michigan, Blake Farenthold of Texas and Kevin Yoder of Kansas didn’t comment on how the members would vote.

“Really? These are the big-ticket items my friends campaigned on?” said Rep. Jim McGovern, D-Mass., acting as the Rules Committee ranking Democrat during Monday’s session, when considering the CRA resolution. He asked where the “grassroots outcry” is for people to give up privacy and mocked the CRA bill as a “beauty.” He lamented the idea of considering the CRA measure on a closed-rule basis, disputing the openness of the GOP-led Congress.

“The FCC unilaterally swiped jurisdiction" from the FTC, Blackburn told the Rules Committee Monday. “Having two privacy cops on the beat will create confusion within the internet ecosystem and will harm consumers. ... The FCC already has the authority that they need to enforce privacy obligations of broadband service providers on a case-by-case basis. They have that authority; it exists to them within Section 222 of the Communications Act.” The CRA motion of disapproval is “a positive step for consumers,” she said.

“We would have preferred to have this considered by the Energy and Commerce Committee," House Communications Subcommittee ranking member Mike Doyle, D-Pa., told Rules. He said the FCC rules were "simple" and do not require much: "They’re modest rules." He pointed out that ISPs know more about people than their own family and said the rules are necessary. "Overturning these rules sends a message to all our constituents that they no longer have the freedom to control their own information," Doyle said. He said the FTC lacks rulemaking authority and mentioned complications involving FTC authority due to ongoing litigation. "This CRA does nothing to put them under FTC jurisdiction," Doyle said.

“This is very serious stuff," Senate Minority Leader Chuck Schumer, D-N.Y., said Monday during a rally of Senate Democrats livestreamed on Facebook. "If we don’t protect this aspect of our privacy, who knows what’s next. Congress should not have intervened -- the law was a good law. ... You can stop it in the House. It's going to be very, very close." He called the CRA "horrible, horrible" legislation. "The Republicans have declared war on the privacy of Americans," said Sen. Ed Markey, D-Mass.

“If this is something that concerns you, you better get in touch with your congressman," said Senate Commerce Committee ranking member Bill Nelson, D-Fla., warning that people's "personal privacy is at risk.”

“This is really kind of scary what they’re talking about doing," said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, pointing to the CRA's prohibition on the FCC from developing substantially similar rules in the future. "It is no longer a guarantee that it will pass.”

“I will vote NO,” tweeted Rep. G.K. Butterfield, D-N.C., a member of House Commerce. “People should have the freedom to decide how their sensitive information is used.”

Rules defenders are taking high-profile steps to raise attention to their concerns. A VPN provider called Private Internet Access took out a full-page advertisement in The New York Times over the weekend listing the 50 Senate Republicans voting for the CRA resolution: “These are the 50 Senators who voted to monitor your internet activity for financial gain,” it said, urging readers to call House offices in opposition.

If the House passes the CRA resolution, Fight for the Future will “unleash billboards with the names of every member of Congress who votes to gut the FCC’s Internet privacy rules that prevent Internet Service Providers (ISPs) like Comcast and Verizon from selling their customer’s personal information to advertisers without their consent,” the group said in a news release Monday, promising a crowdfunding campaign for billboards within relevant lawmakers’ districts that contain how much money those members received from the telecom industry. “They betrayed you,” said the initial billboard mock-up from Fight to the Future listing names of the senators voting for the CRA disapproval. That billboard will appear in Washington and “select districts,” it said.

Industry officials plan a news-media call Tuesday favoring the CRA path. Participants include industry-backed 21st Century Privacy Coalition co-Chairman Jon Leibowitz and General Counsel Howard Waltzman, along with NCTA Executive Vice President James Assey, USTelecom Vice President Lynn Follansbee, Internet Commerce Coalition Jim Halpert, CTA Vice President Julie Kearney and Data & Marketing Association Senior Vice President Emmett O’Keefe. Waltzman and Kearney spoke on the topic during a Tech Knowledge call earlier this month (see 1703060041). “Withdrawing the FCC’s flawed two-tiered privacy regulations is a vital step towards developing a truly comprehensive and effective privacy framework for the entire internet based on the successful FTC approach,” an advisory for Tuesday’s call said. “The FCC rules abandon the longstanding bipartisan consensus in favor of technology neutral and comprehensive privacy regulation on the internet, and upends consumer expectations by abandoning the FTC’s longstanding ‘sensitivity based’ framework for privacy.” The Chamber of Commerce wrote House lawmakers urging votes in favor of the CRA resolution and saying the chamber may consider including their votes in its annual scorecard.

The Electronic Frontier Foundation quoted from privacy policies on Senate Republicans’ websites and, writing in a blog post Monday, said last week’s vote was contrary to the policies touting protection of privacy: “If you’re a U.S. lawmaker, protecting privacy doesn’t just mean avoiding collecting their data when they visit your website. It means standing up for users’ rights every day on Capitol Hill -- the exact opposite of which is to roll back the strong privacy protections already on the books.” The group urged people to call House lawmakers.

“Call your reps in Congress today to tell them to oppose the CRA resolution to repeal the FCC's privacy rules,” Mozilla tweeted Monday, linking to an EFF petition. Gigi Sohn, a fellow at the Open Society Foundations who was a senior aide to former Chairman Tom Wheeler, also urged opposition Monday on Twitter and in an opinion piece for The Verge. “As we saw with last week’s attempt at repealing the Affordable Care Act, when Americans tell their Representatives that they don’t want them to take away their hard-won protections, the House will listen,” Sohn wrote, warning that President Donald Trump “is expected to sign it” after a House vote. The White House didn’t comment Monday. “Black, Muslim, migrant, and all communities at risk of surveillance know that online privacy is an essential civil right in the 21st century,” emailed the Center for Media Justice. “We won’t let Congress get away with this.” The group circulated a document with suggestions for using Facebook and Twitter to oppose the CRA effort. Officials from small ISPs and networking companies including Credo Mobile and Aeneas Communications sent House lawmakers a letter Monday urging opposition: “If the rules are repealed, large ISPs across America would resume spying on their customers, selling their data, and denying them a practical and informed choice in the matter.” A mix of activists held a Reddit question-and-answer session on the subject.

“Companies like Google and Facebook have a wealth of user data that help with developing successful advertising campaigns, targeted to the user,” said Alex Chiavegato, vice president of mobile advertising company Marfeel. “The Senate’s vote to eliminate user privacy for service providers will help operators like Verizon and AT&T use that data to advertise more effectively to customers.”