Senators Officially Introduce Resolution To Reverse ISP Privacy Rule

Image courtesy of DoorFrame

Back in October, the Federal Communications Commission adopted a rule limiting what ISPs can or can’t do with your personal data. As expected, lawmakers are now attempting to overturn this new rule through use of the Congressional Review Act.

That 1996 law gives Congress the opportunity to look over any recently finalized new major federal regulation and voice their disapproval if they don’t like what they see. If the President signs off on a CRA resolution of disapproval, the regulation is rolled back.

Until recently, the CRA had only been used successfully once in its two-decade existence, but with one political party now in control of both the White House and Congress, this previously obscure law is being used to undo a number of rules finalized in the last months of the Obama administration.

The telecom industry was bound to fight the rule no matter what the political landscape, but the change of administration thanks to the Nov. 2016 election gave the lobby a new option: Have the rule removed wholesale, instead of fighting it out in court for years and maybe losing.

In January, industry lobbyists petitioned the FCC to reconsider the rule, and also asked Congress to scrap the rule outright using the CRA.

The industry seemingly found a willing ear in Arizona Sen. Jeff Flake, who introduced his proposal to reverse the ISP privacy rule last night.

Flake’s resolution [PDF] is barely more than one page long, and to the point. It seeks to “provide for Congressional disapproval … of the rule submitted by the Federal Communications Commission relating to ‘Protecting the Privacy of Customers of Broadband and Other Telecommunications Services,'” and says that “such rule shall have no force or effect.”

In a statement, Flake called the rule “midnight regulation,” although the FCC started considering it in March, 2016 — eight full months before the election, and ten months before the Obama administration ended and the Trump administration began.

“It is unnecessary, confusing and adds yet another innovation-stifling regulation to the internet,” said Flake. “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.”

Flake’s resolution has 22 Republican co-sponsors, including:

  • John Barrasso (WY)
  • Roy Blunt (MO)
  • John Boozman (AR)
  • Shelley Moore Capito (WV)
  • Thad Cochran (MS)
  • John Cornyn (TX)
  • Tom Cotton (AR)
  • Ted Cruz (TX)
  • Deb Fischer (NE)
  • Orrin Hatch (UT)
  • Dean Heller (NV)
  • James Inhofe (OK)
  • Ron Johnson (WI)
  • Mike Lee (UT)
  • Jerry Moran (KS)
  • Rand Paul (KY)
  • Pat Roberts (KS)
  • Marco Rubio (FL)
  • Richard Shelby (AL)
  • Dan Sullivan (AR)
  • John Thune (SD)
  • Roger Wicker (MS)

After the FCC’s regular monthly open meeting in February, FCC chair Ajit Pai indicated that he didn’t much care whether the FCC or Congress acted first to reverse the ISP privacy rule, as long as it got done.

When asked by a reporter if he would prefer for Congress to kill the rule, or if he’d rather do it himself through FCC action, Pai answered, “That’s entirely a decision for elected officials to make, and I don’t pretend to be in a position to either prescribe to them or even recommend to them what the course of action should be.”

Meanwhile, however, Pai has also been doing what he can to block parts of the ISP privacy rule from going into effect. On March 1, he had the FCC issue a stay on the part of the rule relating to data breach notification, which otherwise would have gone into effect on March 2. The decision to issue that stay generated blowback both from sitting FCC and FTC commissioners, as well as from Sen. Ed Markey (MA).