Wis. Senate Delays Vote on Broadband Bill, as Democrats Seek to Add ISP Privacy Rules

Sen. Chris Larson and other Democrats had planned Wednesday to offer an ISP privacy amendment to AB-123, his aide said in a Wednesday interview. That bill, proposed by Gov. Scott Walker (R), would add $15.5 million for state broadband grants. Last month, senators voted on a bipartisan basis to amend the Senate version (SB-49) to include ISP privacy rules. The GOP-controlled Assembly didn’t take up the measure, instead passing its own version (AB-123) without privacy language. TDS Telecom, which supports the Walker proposal but opposes state privacy rules, proclaimed the Senate version dead. An aide to AB-123 sponsor Rep. Romaine Quinn (R) confirmed the Senate would consider the Assembly bill and he didn’t expect further movement on SB-49, nor a joint conference to work out differences. A spokesman for Senate Minority Leader Jennifer Shilling (D) confirmed it's unlikely that SB-49 moves forward.

AB-123 was on the agenda, then removed, then reappeared at the bottom of the schedule. The proposed privacy amendment appeared with the bill in the agenda. Republican “Senate Majority Leader Scott Fitzgerald tried to remove the bill from the calendar but there was an objection,” a Shilling spokesman emailed after it reappeared. Then, the GOP-controlled Senate adjourned without considering the bill. Fitzgerald’s office didn’t comment.

The broadband bill is in “a kind of purgatory,” said the Larson aide. It could come up at the next floor vote in the session, June 9, unless the Senate Organization Committee pulls it from the agenda, the aide said. The broadband grants proposed in AB-123 also appear in the state budget proposal, so they could alternately make it through the legislature that way. “The Joint Finance Committee is scheduled to take up the Public Service Commission budget tomorrow,” said the Shilling spokesman. “There’s a chance that this broadband funding issue is taken up by that committee tomorrow.” The budget could be finished in late June, the Larson aide said.

Democrats’ 14-page ISP privacy amendment is more detailed than the originally passed Senate amendment, with a similar result, the Larson aide said. It would require customer opt-in if a broadband internet access service provider wants to “use, disclose, or permit access to any of the customer’s sensitive customer proprietary information.” It would require opt-out approval for non-sensitive information. No customer approval would be needed to use information required for providing broadband service, billing, emergency response and some other exceptions. Data breach notification to customers within 30 days is sought.

Larson plans to move the privacy proposal in a separate bill, his aide said. The measure is waiting for a formal bill number and committee assignment, which could happen by Thursday, the aide said. "The National Republican failure to implement internet privacy safeguards has left the urgent matter of protecting our neighbors’ right to privacy to state governments," the senator emailed us. "It’s clear to all of us in the Legislature that the expectation and right to protect a person’s privacy is a value that is important to our neighbors." The amendment and Larson's bill "are important ongoing efforts to secure privacy standards that allow the industry to prosper while also allowing consumers control over their sensitive personal information," he said.

A Nebraska resolution introduced Monday seeks a study of repeal of FCC privacy rules. “If the repeal of the FCC rule does compromise expectations of privacy and consumer control for Nebraskans, then this study should consider state legislative and administrative options to restore such expectations of privacy and protection from Internet service providers,” said LR-136. The legislature’s Transportation and Telecommunications Committee would do the study.

Some state proposals are meeting hurdles, as in Wisconsin. A Maryland bill failed and the fate of Montana and North Dakota proposals is not clear, the NCSL report said. A Minnesota joint conference dropped privacy language from the state's omnibus jobs bill, though the omnibus isn’t final and the privacy amendment’s sponsor said his language could be re-added (see 1705050042).

An issue for states could be “a legal doctrine called the dormant commerce clause that prohibits states from passing legislation that burdens interstate commerce,” emailed Electronic Privacy Information Center Policy Director Caitriona Fitzgerald. “I imagine that’s what state legislators are trying to work around.” However, “EPIC is confident that states will pass laws to protect broadband privacy,” she said. “It is a complicated issue that policymakers may have just needed more time to parse.”

“Minnesota and Wisconsin were among the earliest state legislatures to consider broadband privacy bills, with legislators working on very tight deadlines to introduce bills,” said Center for Democracy and Technology Policy Analyst Natasha Duarte. “There seems to have been a good deal of concern that legislators were being rushed into voting on these provisions without adequate time to consider and fine tune them.” Bills improved with time, she said. Another obstacle is telecom industry lobbying, she said: Companies “have put a good deal of resources into fighting these bills, and state legislators can't always match their fervor.”