ISP-Loyal Marsha Blackburn Pushing New Broadband Privacy Law, But It's A Hollow PR Show Pony With No Chance Of Passing

from the legislative-lambada dept

You might recall that Tennessee Representative Marsha Blackburn recently played a starring role in gutting FCC consumer broadband privacy protections using the Congressional Review Act. It was one of the more bare-knuckled examples of pay to play government in recent memory, and many of the straight GOP-line voters have been getting an earful from their constituents back home. Utterly unmoved, most of those lawmakers have quickly shifted on their heels and are now busy trying to gut net neutrality with the same blatent disregard for public opinion they showed while killing privacy protections.

In what appears to be largely a PR move to try and deflect significant criticism for her large ISP-friendly policies, Blackburn has subsequently introduced the BROWSER Act -- aka the Balancing the Rights of Web Surfers Equally and Responsibly Act. The act, as the FCC's now-discarded rules would have done, requires that consumers must opt in before a broadband provider is allowed to collect and sell subscriber information.

According to a Blackburn press statement on the legislation, killing the FCC's popular privacy protections, then introducing this new bill (which has little more than zero chance of passing for reasons we'll get into) was necessary to eliminate "confusion":

"As a Member of the House Homeland Security Committee's Cybersecurity Subcommittee, internet privacy and security must be a top priority. Step one in that process was to override any regulation that creates more confusion by giving jurisdiction to multiple agencies, only to have them regulate only one-half of the digital world.

Step two in that process is to introduce comprehensive internet privacy legislation that will more fully protect online users in their use of Internet Service Providers (ISPs), search engines and social media,” said Fitzpatrick. “The BROWSER Act does just that. We must offer American citizens real internet privacy protection, not mere lip service which gives internet users false expectations about their level of online security. I encourage all House members who are serious about protecting our constituents' online privacy to join me in advancing this bill."

So, as we already noted in great detail, this appears to be part of a script that was hashed out months ago by the GOP. Step one is to gut FCC oversight authority over one of the least-competitive sectors in American industry by killing the privacy protections, walking back net neutrality, and dismantling the FCC's 2015 decision to classify ISPs as common carriers under Title II of the Communications Act. From there, the plan is to shovel any remaining oversight of giant broadband duopolies to an FTC Blackburn (and the ISPs that adore her) know is ill suited to provide meaningful, real oversight.

The FTC lacks rule-making authority, is already under-funded and over-extended, and AT&T lawyers have shown they may already be able to tapdance around the agency's authority anyway. This was all pretty well spelled out in a recent interview by former FCC boss Tom Wheeler, during which he called this particular plan a "fraud":

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

With the attacks on net neutrality and privacy becoming politically toxic, it's highly unlikely that Blackburn's proposal sees any serious support among Democrats. And because it actually would wind up expanding regulatory authority over "edge providers" (Netflix, Google, other content companies), it's not likely to see support among many Republicans, either. According to a joint statement made under the umbrella of the Internet Association, internet companies like Google, Netflix, and Twitter also oppose the new law:

We, along with a broad swath of the American economy, are aware of the BROWSER Act and are tracking the proposal. This bill has the potential to upend the consumer experience online and stifle innovation. Policymakers must recognize that websites and apps continue to be under strict FTC privacy enforcement and are not in an enforcement gap, unlike other stakeholders in the ecosystem.

This is all an arguably bizarre move for a politician that has shown, time and time again, that her very top priority is always the interest of giant ISPs like Comcast and AT&T -- coincidentally her top campaign contributors. Blackburn, who supported SOPA, has pushed legislation repeatedly trying to kill net neutrality under the banner of "restoring freedom." She's also gone out of her way to defend AT&T and Comcast's efforts to pass state-level protectionist laws hindering competition, which is a major reason her home state of Tennesee is one of the least connected states in the nation.

And this new privacy legislation -- which again expands regulation of internet content companies -- is also strange for a lawmaker that has consistently insisted over the years that "regulating the internet" kills innovation:

Which brings us to the multi-million-dollar question: if Blackburn is such an obvious servant to the interests of telecom duopolies, why is she pushing a law that would add regulatory burdens on both ISPs and content companies alike?

As the ACLU was quick to note in their review of the bill, the biggest goal appears to be to preempt a lot of the state and city regulations that have been popping up all over the country in response to the killing of the FCC's rules. More than 17 states have introduced privacy broadband rules in the wake of the death of the FCC rules, and whatever loophole-filled final draft Blackburn submits would be certain to preempt these already tougher protections:

In some cases, state legislation being considered is stronger than what would have been required under the FCC rules. For example, in New Hampshire, a bipartisan bill would prohibit providers from offering discounts to individuals who waive their privacy rights – something the ACLU urged but the FCC declined to do in its rules. Many states have also pressed for limits on not just the use but also the collection of information.

...Skepticism of Rep. Blackburn’s motives is also warranted given her voting history. Rep. Blackburn introduced the legislation to gut the FCC rules. If she had truly been interested in creating parity between the privacy standards applied to edge and internet providers, she could and should have worked to strengthen and replace the rules. Instead, she irresponsibly pushed for reversal of the rules, leaving an enormous privacy gap. Introduction of this legislation, which thus far shows no indication that it will become law and could easily be watered-down, does not remedy this reckless act."

Indeed, killing these state-level privacy protections does appear to be a top GOP priority after the March vote to kill the FCC rules. FCC majority Commissioners Ajit Pai and Mike O'Rielly have already said they plan to somehow prevent states from imposing such protections. You're to ignore that Pai and Blackburn have argued that anti-competitive protectionist laws written by the likes of AT&T are a "states' rights" issue, but now when states are looking to actually protect consumers it's a bridge too far.

But the primary reason Blackburn is pushing this proposal is that she knows it has absolutely no chance of passing, but may provide PR cover for her increasingly-obvious, duopoly-favoring telecom policy proposals ahead of the 2018 elections. Blackburn has been hammered in recent months via giant billboard ads purchased by activists criticizing her privacy sell out in her home state of Tennessee. There's nothing particularly subtle about the campaign:

Either way it's a win/win for Blackburn. If it passes, Blackburn's friends at AT&T and Comcast will ensure it's crafted to be aggressively weaker than state-level laws, overseen by an FTC they know won't have the authority, funding or time to actually police the subject. If it doesn't pass, it still functions as a marketing message designed to try and convince the voters that Blackburn isn't the anti-consumer Comcast coddler her voting record and campaign contributions clearly show she is.

Filed Under: broadband privacy, browser act, isps, marsha blackburn, opt-in, privacy

FCC Commissioner Wants To Ban States From Protecting Consumer Broadband Privacy

from the states-rights!-Or-not! dept

Despite a last-ditch effort by the EFF and other consumer and privacy groups, the GOP voted back in March to kill consumer broadband privacy protections. As we noted several times, the protections weren't particularly onerous -- simply requiring that ISPs are transparent about what data they're collecting, who they're selling it to, and that they provide working opt-out tools. But because many of these large ISPs are busy pushing into the media sector (AT&T's acquisition of Time Warner being just one example), large ISPs lobbied fiercely to eliminate anything that could dent these future potential revenues.

Shortly thereafter, at least eight states and a handful of cities rushed in to fill the void. The city of Seattle, for example, passed a new requirement that ISPs receive opt-in permission (the dirtiest phrase imaginable to the marketing industry) before collecting and selling subscriber data. Meanwhile in Maine, a new privacy proposal by State Senator Shenna Bellows is seeing support from Democrats, Republicans, and Independents alike. Bellows cited Congress' decision to overturn the protections as a motivation for the move:

"With its reckless vote, Congress put Mainers’ privacy up for sale,” Bellows said. “Most people are rightfully appalled by the idea that their Internet service provider could be watching their every move online and selling their information to the highest bidder. We owe it to our constituents to protect their privacy."

This move by the states to do the job Congress wasn't willing to do has apparently riled the current FCC majority. Speaking at an event at the American Legislation Exchange Council (ALEC), FCC Commissioner Mike O'Rielly said he would be exploring taking some kind of action against states that move to pass new broadband privacy protections. O'Rielly's comments have previously been backed by current FCC boss Ajit Pai, who has also hinted at taking action against the states:

"It is both impractical and very harmful for each state to enact differing and conflicting privacy burdens on broadband providers, many of which serve multiple states, if not the entire country,” said Pai. “If necessary, the FCC should be willing to issue the requisite decision to clarify the jurisdictional aspects of this issue."

And to be clear, many of these state efforts may cause problems. ISPs have to adapt their business to multiple, discordant protections. In same states, you're likely to see overreach, as politicians try to craft legislation based on what's all-too-often a mud-puddle deep understanding of technology. And the patchwork rules also create confusion for consumers, who suddenly find their privacy is (or isn't) protected depending entirely on whether they're over the state line -- or just how loyal their state representatives are to the charms of large ISP and marketing industry lobbyists.

The problem with this complaint, of course, is we wouldn't be in this situation if Congress and the FCC majority hadn't mindlessly rushed to kill the FCC's basic privacy protections in the first place. It was their choice to ignore the will of the public and push policy solely because AT&T, Verizon, Comcast and Charter thought it would be nice. The resulting fractured policy landscape is their responsibility.

There's also the fact that both Pai and O'Rielly have taken longstanding issue with the FCC's attempt to thwart ISP-written, state protectionist laws that hamstring local competition. Those laws, O'Rielly and Pai have long declared, are sacred and a matter of states' rights. Odd that when the states defend the anti-competitive fiefdoms enjoyed by giant ISPs, it's a matter of "states' rights," but when those same states move to buck the interests of those same providers and protect consumer privacy, it's suddenly a capital offense.

During his speech, O'Rielly repeatedly vilified support for privacy and net neutrality as the "whims of the misinformed" and "socialism":

"The members of ALEC can serve an important role as the new Commission seeks to restore free market principles to broadband offerings. Many of you know all too well of the pressure on us to buckle and acquiesce to the whims of the misinformed screaming for Net Neutrality. You likely face it at your respective statehouses as you debate the various matters before you. The ‘progressive agenda’ being pushed in so many settings is really an effort to use government as a means to redistribute hard earned assets from one group of people to favored interests. Do not let your voices go unheard as Net Neutrality advocates slowly, but surely, seek to drag the U.S. economy toward socialism."

As we've long noted, ISPs (and the politicians paid to love them) have had immense success portraying both privacy rights and net neutrality as partisan issues, therefore encouraging public bickering and stalling any real progress on policy. In reality, however, both concepts have broad, bipartisan support (only baseball and getting screwed repeatedly by Comcast tend to magically bridge this country's deep, partisan divide). Ultimately, I think we'll find that mindlessly trampling consumer broadband rights isn't quite the "red meat for the base" both Pai and O'Rielly believe it is in their own heads.

Filed Under: broadband, broadband privacy, competition, fcc, mike o'rielly, privacy, states
Companies: alec