Last Thursday Republicans proposed a new law that would require companies from Comcast and Verizon to Facebook and Google to get your permission before selling your internet browsing history.
Sounds familiar? Probably, because last year the Federal Communications Commission passed a sweeping set of privacy rules that did much the same thing, rules that Republicans voted to scrap just two months ago. Yet, now US representative Marsha Blackburn, one of Congress' top recipients of telco cash, is trying to bring similar-sounding regulations back, except stronger.
So, what gives?
Under rules approved by the Obama-era FCC, internet service providers—the Comcasts and Verizons of the world—could not sell your browsing history to advertisers or other data brokers unless you opted in. Websites and apps—your Facebooks and Googles—would not face such restrictions. Then, this past March, the GOP-led Congress passed a resolution not only revoking the rules, but banning the FCC from passing similar rules in the future. President Trump signed the resolution in April, and the rules were stopped before ever going into effect. Mission seemingly accomplished.
But last week Representative Blackburn, Republican chair of the House Communications and Technology Subcommittee, introduced the BROWSER Act (yes, it's an acronym: Balancing the Rights of Web Surfers Equally and Responsibly). Not only would the bill apparently reinstate the ban on internet providers selling data without opt-in permission; it would also subject "edge providers"—websites apps, in other words—to the same restrictions.
That's right: The bill would require any internet company to get opt-in permission before sharing sensitive information such as health data, your social security number, or internet browsing history. Simply allowing users to opt out wouldn't cut it. What's more, companies wouldn't be able to make opting in a requirement to use their services.
Blackburn is about the last person you'd expect to introduce such a bill. She introduced the House version of the resolution that overturned the FCC's rules and has a long history of siding with the telecommunications industry on issues like net neutrality, municipal broadband, and cable-box reform. According to political finance watchdog group Open Secrets, she's raised nearly $564,000 in campaign contributions from the telecommunications industry, more than nearly anyone else in Congress.
While this looks like an about-face, Blackburn, whose office didn't answer specific questions about the bill, it's not entirely inconsistent with her past statements. While critics have viewed the GOP's efforts to undermine internet privacy as part of a broader ideological crusade against government regulation—and Blackburn's bill would effectively ban the FCC and state regulators from making their own privacy rules—Republicans have argued their beef isn't with privacy rules; rather, they take issue with having too many cops to enforce them.
This regulatory turf war started because Federal Trade Commission used to be responsible for policing the privacy policies of internet service providers. But in 2015, the FCC reclassified internet providers as common carriers, giving the agency the authority to enforce its net neutrality rules. Since the FTC has no authority over common carriers, broadband privacy policy fell to the FCC. But the FCC has no authority over internet content providers, which remained the responsibility of the FTC. When the FCC passed its more strict rules, internet providers balked, saying it was unfair that they were being held to a higher standard than the likes of Facebook and Google.
"The FCC’s privacy rulemaking had two distinct problems," Blackburn said in an announcement. "First, it created confusion by establishing two privacy regulators. The FCC unilaterally swiped jurisdiction from the FTC in a blatant power grab. Second, the FCC focused on only one part of the Internet eco-system and ignored edge provider services that collect as much, if not more data, than ISPs. The government should not pick winners and losers when it comes to the privacy of Americans."
If Blackburn's new proposal passes, the Federal Trade Commission would regain the sole authority to enforce its provisions—an outcome not inconsistent with Blackburn's previous public statements about internet privacy. Still, activists say, between the two agencies, Congress might have an easier time bringing the FTC to heel.
But Blackburn may also be feeling privacy pressure. Earlier this month, activists sponsored billboard ads in Blackburn's district accusing her of betraying her constituents by repealing the FCC's privacy rules. Her proposed bill could be an attempt to convince her constituents that she isn't in favor of giving companies a free hand to sell their data to the highest bidder. "It’s either an insignificant political stunt or a turning point in internet regulation," says Kevin Werbach, an associate professor at the Wharton School who was part of President Barack Obama’s transition team.
During the debate earlier this year over repealing the FCC's provisions, it was hard to swallow legislators' complaints about the creation of two different privacy enforcers and inconsistent rules for internet providers and websites; repealing the FCC's rules ultimately did nothing to address those particular objections. The FTC still doesn't have authority to regulate internet providers, and the rules are still inconsistent across agencies. But Blackburn's new bill would not only address those issues, it would raise the privacy bar for everyone.
Which comes as a bit of a surprise, since Blackburn had little to say at the time about the FCC rules themselves. She didn't, for example, express any opinion during the House debate about whether websites and internet service providers should have to seek opt-in permission before selling personal information. Instead, she fell back on standard-issue GOP talking points. The FCC's rules were an example of "big government overreach," she said. Republicans, she said, should work to repeal unnecessary regulations.
Her new bill, however, brings back many of those regulations while placing responsibility for their enforcement in a different agency. "It’s a major shift from the Republican view that the market can handle internet privacy concerns," says Werbach.
Fight the Future, the activist group that paid for the billboards targeting Republicans who voted to throw out the FCC's privacy rules, doesn't believe Blackburn's new effort is sincere. "She’s only introduced this bill—which she probably doesn’t even intend to pass—because her constituents are so angry at her for voting to gut privacy rules," says group co-founder Holmes Wilson.
Matt Wood of Free Press, a group that advocates for internet privacy, is also skeptical but says there's a lot to like about the bill. Still, he's worried about stripping away power from the FCC and the states. Overriding state law, for example, would prevent states from passing weaker privacy laws or carving out exemptions for deep pocketed companies. But it could also stop states from passing more strict laws or otherwise tailoring the laws to their regional needs. "Those might be worthwhile trade-offs if the FTC is well equipped to handle internet privacy," Wood says.
Giving a single agency responsibility to enforce internet privacy law does make sense, given that the line between broadband access provider and content provider is blurring. Verizon, thanks to its purchases of AOL and Yahoo, owns an online advertising and content empire. Comcast owns NBC Universal, which includes not just television stations but many digital content investments. AT&T might soon own Time-Warner. And while Google doesn't actually own Google Fiber anymore, its parent company Alphabet does, and it's easy to believe that the two subsidiaries will end up sharing data eventually.
But of the agencies equipped to govern this increasingly complex web of interests, Wood argues that the FCC has greatest experience in networks. It also has much more experience crafting actual rules, while the FTC is primarily an enforcement agency. The FTC can shape policy through its interpretation of the law and its own past decisions, but it doesn't generally have the authority to make hard and fast rules the way the FCC does. Stripping the FCC it of its ability to regulate the internet could make it even harder for the government to adapt to new technologies and practices. What's more, Republicans last year proposed a now stalled bill that would have further curbed the FTC's authority.
Still, none of these issues matter much unless Blackburn's bill has enough support to become law. It does have two GOP co-sponsors—Brian K. Fitzpatrick of Pennsylvania and Bill Flores of Texas—but overall, lawmakers in both parties are tight-lipped. The office of senator John Thune, the South Dakota Republican who co-sponsored the Senate's effort to repeal the FCC's rules, says he has no plans to introduce similar legislation in the Senate.
The Internet and Television Association, a trade group that represents the cable industry, and US Telecom, a group that represents the broader telecommunications industry, both declined to comment on the bill, saying they're still reviewing it. The online advertising industry, on the other hand, isn't staying quiet.
"The 'Browser Act' could significantly impact much of the trillion dollars in GDP the ad-supported internet generates, taking millions of jobs along with it," says Brad Weltman, vice president for public policy of the Interactive Advertising Bureau, the digital ad industry's main trade group. The Internet Association, which represents many tech companies, including Facebook and Google, also released a statement opposing the bill.
In the end, the fate of the bill and others like it will likely depend on whether it can garner enough grassroots support. More than many other issues, concern over internet privacy has a way of transcending party lines. The fact that Blackburn's bill is on the table at all suggests that public outcry in support of internet privacy is working.
