Browser Act Negotiations at Loggerheads Amid Partisan Rancor
House Commerce Committee lawmakers remained at loggerheads before the July 4 recess in negotiations over the Balancing the Rights of Web Surfers Equally and Responsibly (Browser) Act. HR-2520, filed by House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., would make the FTC the privacy regulator for ISPs and edge companies and would require opt-in consent even for web browsing data (see 1705190053). Blackburn and other House Commerce Republicans indicated they're continuing to meet with stakeholders and gathering feedback. Committee Democrats indicated they're all but dead set against the bill.
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House Commerce ranking member Frank Pallone, D-N.J., echoed other committee Democrats when he told us Blackburn's role in leading the Congressional Review Act resolution of disapproval effort that in March abolished FCC ISP privacy rules has been a major hindrance in her efforts to get Democratic co-sponsors (see 1706070050 and 1706210059). “Given what the Republicans did” in the CRA debate, Blackburn's “outreach efforts at this point are just not credible,” he said. After enactment of the measure, no formal privacy rules were in effect. The FCC still has enforcement jurisdiction under Communications Act Section 222 but no specific regulations.
House Communications ranking member Mike Doyle, D-Pa., said he and fellow Democrats would be inclined to support HR-2520 only if it restored ISP privacy “under FCC jurisdiction. That's where it properly belongs. That's the problem with the bill. The FTC doesn't have rulemaking authority and consumers aren't going to be protected near as well as they would” under FCC ISP privacy rules. Rep. Anna Eshoo, D-Calif., said “there may be parts” of HR-2520 “that I'm interested in, but overall it's still a fig leaf for having ripped away” FCC ISP privacy rules. “That is something that no one on our side of the aisle is going to support,” Eshoo told us: “But if [Blackburn] wants to sit down and have a roundtable about other parts of the bill, I'd be happy” to participate. “That's the professional way to proceed” rather than circulating a letter to House Democrats seeking co-sponsors, Eshoo said.
Blackburn said her office is “looking at a lot of different options” for courting House Democrats, and having productive conversations with some Democratic lawmakers and outside stakeholders. She didn't discount the possibility she eventually may have to move forward with only Republican support: “If we have to, we have to. But I'd really like to do it on a bipartisan basis.”
House Commerce Chairman Greg Walden, R-Ore., said it's far too early to discuss the possibility of pursuing HR-2520 as a fully partisan bill. Blackburn staked out a “very aggressive approach” to ISP privacy that got support from AT&T (see 1706220053) but drew derision in “different quarters in the internet community,” he said. “We're letting this play out a bit,” particularly given the FCC May NPRM on a potential rollback of the 2015 net neutrality order and reclassification of broadband as a Communications Act Title II service. “We'll see what happens” with that proceeding since the FCC could reach a solution that would “restore the system to the way it was” before FCC ISP privacy rules took effect, he said.
House Digital Commerce and Consumer Protection Subcommittee Chairman Bob Latta, R-Ohio, said his priority remains the subcommittee's work on autonomous vehicle legislation. The panel examined a set of 14 bills that would deal with aspects of autonomous vehicle regulation (see 1706260023 and 1706270077). The subcommittee would have primary jurisdiction over hearings and markups of HR-2520 if Blackburn moves forward.
House Democrats' continued reluctance to sign on may be as much about perceptions that House Commerce Republican leaders like Walden and Latta aren't giving the bill their “full-throated support” as it is about the lingering effects of the ISP privacy CRA, said an industry lobbyist. “They don't think it's going to go anywhere” without clear buy-in from Walden and others, the lobbyist said.
Some stakeholders are still examining HR-2520 before they render a verdict. Public Knowledge is still evaluating HR-2520 against other privacy legislation, “but we're glad that members of Congress are responding to consumers' wishes to have a choice of how their data is used,” said Vice President Chris Lewis. “The question is how we get that policy right.” Digital Content Next believes HR-2520 “has got its flaws but it's certainly a conversation we need to start having,” said Senior Vice President-Government Affairs Chris Pedigo. “Our feeling is that it's interesting to see a Republican proposing a bill that would level the playing field.”