Last fall, the FCC approved a new rule detailing internet service providers can and can’t gather and use your information. The affected industries cried “unfair!” and now, with a new business-friendly FCC Chairman and White House, they are calling on Congress to make this pesky privacy rule go away.
As we’ve explained before, the Congressional Review Act permits Congress to review, and possibly overturn, recently-enacted rules from Federal agencies. Any rule passed in the last months of the Obama administration, including the ISP privacy rule, fits within Congress’s review window under the CRA.
All that’s required to undo a rule under the CRA is for Congress to pass a joint resolution of disapproval that is then signed by the President. Unlike a typical piece of legislation that would require 60 votes to make it through the Senate, a CRA resolution only needs a simple majority.
Today, a group of 16 industry trade and lobbying groups, including the Network Advertising Initiative, USTelecom, the CTIA, the NCTA, and the American Cable Association, sent a letter [PDF] to the House and Senate asking them to tart the CRA process.
The letter starts off by singing the praises of the internet — a sentiment with which basically everyone agrees — before explaining that the FCC is trying to ruin it for everyone.
“Unfortunately,” it reads, “in adopting new broadband privacy rules late last year, the FCC took action that jeopardizes the vibrancy and success of the internet and the innovations that the internet has and should continue to offer.”
“While the FCC’s Order applies only to ISPs,” it continues, “the onerous and unnecessary rules it adopted establish a very harmful precedent for the entire internet ecosystem.”
That “onerous” bit ties into industry’s key argument against the rule before it was passed: that it’s not fair for companies like Facebook, Google, and Amazon not to be subject to the same rules about collecting and using your personal information as cable and wireless companies are. AT&T in particular has hopped on this hobby horse a great deal, perhaps related to their suspended program — not banned, under the rule — that charges some users extra to keep private data private.
After repeating the other common old arguments against the rule, the letter adds that the rule, “would create confusion and interfere with the ability of consumers to receive customized services and capabilities hey enjoy and be informed of new products and discount offers,” even though the rule permits companies to continue marketing to their customers.
In response, a coalition of consumer advocates sent Congress a response letter [PDF] asking Congress to ignore the industry lobbying groups and leave the rule alone.
The response letter, signed by 19 groups including the ACLU, the Center for Digital Democracy, Free Press, Public Knowledge, and our colleagues down the hall at Consumers Union (the policy and mobilization arm of our parent company, Consumer Reports), says that the ISPs’ “overreaction to the FCC’s broadband privacy rules has been remarkable.”
“Their supposed concerns about the rule are significantly overblown,” it continues. “Some broadband providers and trade associations inaccurately suggest that this rule is a full ban on data use and disclosure by ISPs, and from there complain that it will hamstring ISPs’ ability to compete with other large advertising companies and platforms.”
But that, the letter continues, is simply not true. “To the contrary, ISPs can and likely will continue to be able to benefit from the use and sharing of their customers’ data, so long as those customers consent to such uses. The rules merely require the ISPs to obtain that informed consent.”
Meanwhile, the rule itself is built on the underpinnings of the Open Internet Order of 2015, a.k.a. net neutrality. If the privacy rule is reversed procedurally, working backwards legally and targeting Title II reclassification itself is industry’s obvious next step.
Will Congress actually reverse the rule, though? That’s hard to say.
Usually, CRA review only triggers a formal disapproval of something, if that. Only once since it was enacted in 1996 has it ever resulted in a rule actually being overturned. However, the political landscape here in the early days of 2017 is more volatile and unpredictable than basically anyone is used to, and so anything is possible.