Senate debates permanent rollback of FCC’s broadband privacy rules (Update: Passed)

Update: This resolution has passed the Senate 50-48 the next morning.

Republican Senators led by Arizona’s Jeff Flake proposed a resolution earlier this month that would roll back privacy rules adopted by the FCC last year that prevented ISPs from collecting personal data without asking permission first. Today the Senate was alive with oratory as people spoke for and against the proposal.

Now, there is a lot of room for debate on how we should regulate ISPs and who should do it, and a healthy opposition is essential for good governance, but this here is just plain a bad idea, and several Senators said so, in a great many more words than that. You can review the whole debate over at C-SPAN.

Senator Ed Markey of Massachusetts, who has been a strong supporter of net neutrality and the FCC’s most recent internet regulations, gave a long and passionate speech about the proposal (quotes were taken live and may not be word for word):

“How much privacy are people in this country entitled to?” he asked. “Are we going to allow the broadband companies to determine that?”

“Yes, there are two sides to this,” he said. “You want the entrepreneurial spirit to thrive, but you have to be able to say ‘no, I don’t want you in my living room.’ Yes, we’re capitalists, but we’re capitalists with a conscience.”

This is the guy who led the creation of the 1996 Telecommunications Act, by the way, so he knows what he’s talking about.

Florida Senator Bill Nelson said: “Passing this Senate resolution will take consumers out of the driver’s seat and place the collection and use of their information behind a veil of secrecy, despite rhetoric surrounding our debate today suggesting that eliminating these common sense rules will better protect consumers’ privacy online or will eliminate consumer confusion.”

Hawaii’s Senator Brian Schatz said the repeal would be “the single biggest step backwards in online privacy in many years.”

The broadband privacy rule, among other things, expanded an existing rule by defining a few extra items as personal information, such as browsing history. This information joins medical records, credit card numbers and so on as information that your ISP is obligated to handle differently, asking if it can collect it and use it.

You can see the utility of the rule right away; browsing records are very personal indeed, and ISPs are in a unique position to collect pretty much all of it if you’re not actively obscuring it. That means every product you look up, every malady you search for and every site you visit. Facebook and Google see a lot, sure, but ISPs see a lot too, and a very different set of data.

Should they be able to aggregate it and sell it without your permission, perhaps to other aggregators, in order to better target ads or add to a profile of you and your demographic? The FCC thought not, and proposed the rule, part of which was rescinded by the new FCC leadership before it took effect.

This resolution would not only rescind it all the way, but because it is an official disapproval under the Congressional Review Act, it would prevent the FCC from enacting similar rules in the future. Even if Congress doesn’t like these rules, should the requisite agency be forbidden from creating any like them at all?

Flake’s announcement of the resolution, by the way, is very misleading.

The FCC’s midnight regulation does nothing to protect consumer privacy. It is unnecessary, confusing and adds yet another innovation-stifling regulation to the internet. My resolution is the first step toward restoring the FTC’s light-touch, consumer-friendly approach. It will not change or lessen existing consumer privacy protections. It empowers consumers to make informed choices on if and how their data can be shared.

First, this “midnight regulation” was discussed for years and there was a lengthy public comment and review period.

Whether it’s necessary is arguable, but it isn’t confusing. It really is very simple, especially the data protection rules; anyway, it’s just an expansion of earlier rules companies were already subject to.

It wouldn’t be “restoring” the FTC’s approach, first of all because the FCC rules are in line with the FTC’s already, as one of the latter agency’s commissioners already stated. Second, the FTC’s authority over privacy rules is questionable since a very recent court decision that removed that authority in many states.

The Republican Senators speaking in support of the resolution, by the way, made a big show of the technical and statutory jurisdiction of the FCC being lacking, which is far from established and the subject of considerable controversy right now. Senator Thune, hilariously, suggested the FCC’s role was “gradually diminishing” as people used the internet more than phones. The exact opposite is true, in fact, and the FCC’s role has become far more important over the last two decades.

That the resolution “will not change or lessen existing consumer privacy protections” is true — because they’re repealing it before it takes effect. It’s like saying they’re not stealing something from you because you haven’t picked it up yet.

It does not empower consumers to make informed choices; it removes the ability to make informed choices. Broadband providers do have to provide some information on what they collect, but the choice consumers would have would be choices between providers. And as some have pointed out, with no regulations like this one, no provider will voluntarily provide anything more than the minimal possible level of privacy for this data.

“Let the marketplace sort it out, they say,” Markey said. “What marketplace? Most places there are only two companies to choose from. And they’re both going to say, privacy protection is voluntary! It’s take the broadband service or leave it, and if you take it, you have no privacy. Asking ISPs to write their own privacy rules is like asking a burglar to program your security system.”

Amazingly, this dangerous proposal garnered 34 co-sponsors — and support for it is definitely not bipartisan. Today was the first time the opposition in the Senate had a chance to speak their piece on the floor, and the vote on the joint resolution will take place tomorrow evening.