Internet Privacy Rules Repealed

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 28, 2017

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InternetAdministrative rules that were meant to safeguard the privacy interests of internet users, adopted by the Obama administration over the objections of telecommunications companies, have been repealed by a legislative decree that President Trump recently signed. The legislature repealed regulations adopted by the Federal Communication Commission (FCC) that would have limited the uses that internet service providers (ISPs) can make of their customers’ private information.

How Administrative Rules Are Repealed

After a federal agency adopts an administrative rule, the agency can only repeal the rule by going through the same time-consuming process that it must undertake to pass the rule. When Congress opposes a regulation, however, it can overturn the regulation by two means. The first is to pass a law that would nullify the regulation. Bills of that nature are subject to filibuster in the Senate, however, so a regulation is unlikely to be nullified by legislation unless it is widely unpopular with both political parties.

The second route is the Congressional Review Act (CRA). The CRA allows a rule to be repealed by a simple majority vote of the House and Senate, provided the president signs the repeal into law.

Limitations built into the CRA often stymie the legislature’s ability to repeal administrative rules. Since a repeal requires a majority vote in both the House and the Senate, the same party must typically control both legislative bodies for the repeal to be passed. Even then, if the administration that enacted the rule is still in office, the president will almost certainly veto the disapproval resolution.

The CRA is generally effective only when a president of a different party takes office and that party controls both the House and the Senate. That is, of course, the current situation. President Trump has signed eleven disapproval resolutions (so far), ten more than the total number of CRA resolutions that have resulted in the repeal of regulations in the past.

The CRA only allows the repeal of a regulation if a disapproval resolution is introduced 60 legislative days after the regulation is finalized. That means that the window is closing to repeal regulations adopted by the Obama administration. Still, President Trump has so far signed resolutions that repeal “rules meant to expand background checks for mentally ill gun purchasers, change public school assessments, and reduce coal waste runoff into streams.”

Internet Privacy Regulations

As FreeAdvice explained, the rules that have now been repealed extended the same privacy protections that customers of telephone and cable TV companies receive to customers who purchase broadband service from an ISP. The rules would have prevented an ISP from sharing information about the customer without the customer’s consent, including information about:

  • Health
  • Finances
  • Children
  • Social security numbers
  • Geolocation
  • Web browsing history
  • App usage history
  • Content of communications
  • Email addresses

Many consumers assume that their private information can never be shared, but the repeal of the FCC rules raises questions about whether and when consumer data really is “private.”

In addition, the regulations required ISPs to use “reasonable measures” to secure private data from hackers. The repeal ends that mandate. And since the repeal allows ISPs to collect private information, ISPs that do so will become a tempting target for hackers.

The repeal narrowly passed the Senate and House, primarily on party-line votes. The repeal was championed by large telecommunications companies like Verizon and AT&T. It was opposed by consumer groups and privacy advocates.

Arguments for Repeal

The political makeup of the FCC changed when the administration changed. Its new chair, Ajit Pai, a former lawyer for Verizon, opposed the privacy rules. On a 2-1 party line vote, the FCC delayed implementing the rules while awaiting the anticipated repeal.

According to Pai, “the privacy rules were onerous and unfairly strapped regulations on telecom carriers, but not on web companies such as Facebook and Google that also provide access to online content.” The FCC does not have regulatory authority to impose the same constraints on companies that deliver content to consumers. On the other hand, consumers can choose not to use Facebook if they do not like the site’s privacy policies. Consumers who want to use the internet cannot easily avoid using an ISP.

A lobbying group for the cable industry lauded the repeal, claiming that the rules “deny consumers consistent privacy protection online.” How taking away all privacy protection is an improvement is not clear from the lobbyist’s statement.

The resolution was introduced by Sen. Jeff Flake (R-AZ) who called the regulations “innovation-stifling.” Whether “innovations” that require the use of a consumer’s private information without the consumer’s permission are valuable to society is not a question that the senator addressed.

Arguments Against Repeal

At the very least, broadband providers want to collect data that can be used to target advertising, in the same way that Facebook gives users ads about hotels in San Diego soon after they search for information about the San Diego Zoo. While several telecommunications companies have claimed that they will not sell the data to third parties, they have not suggested that they would accept a rule that prohibits them from doing so.

Senator Edward Markey (D-MA) complained that the repeal “made it easier for Americans’ sensitive information about their health, finances, and families to be used, shared, and sold to the highest bidder without their permission.” Tracking website and geolocation activity can allow an ISP to know where a consumer travels and shops, what political viewpoints they find appealing, where their children go to school, and what health problems they want to address with online advice.

The unfairness justification for the repeal is questioned by privacy advocates who note that website owners have access to much less information than an ISP. Rep. Frank Pallone Jr. (D-NJ) and FTC Commissioner Terrell McSweeny point out that broadband “providers potentially have access to every bit of data that flows from a consumer.” That kind of access, in their view, “demands a set of rules that matches the long-held expectations of Americans — that we should have the freedom to control access to the most sensitive information about our daily lives.” As a result of the repeal, that freedom has been lost.

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