By: Brad Stringfellow,
Voting down strict party lines, the Republican-majority Senate recently threw out FCC rules which would have provided consumers with more privacy from Internet Service Providers (ISPs).1 As it stands, ISPs such as Comcast are on an even playing field with free services such as Google or Facebook who are able to capture, package, and sell your activity. The reason the FCC sought to put harsher restrictions on ISPs is that consumers have the choice of whether or not to use free services such as Google or Facebook, but there is little consumers can do to escape an ISP’s oversight: using the internet in almost any capacity is accomplished through an always-watching ISP.
The FCC was unhappy with this lucrative opportunity ISPs have to exploit and sell consumer browsing data, especially since consumers must pay ISPs for internet service. In 2016, the FCC passed a new set of rules entitled Protecting the Privacy of Customers of Broadband and Other Telecommunication Services in 2016.2 The new rules were meant to increase consumer privacy by forcing ISPs to increase data security and privacy measures as well as a measure which would only allow the sale of browsing history if the consumer opted-in.3
The FCC explained their view of ISPs by saying that “ ISPs are in a position to develop highly detailed and comprehensive profiles of their customers – and to do so in a manner that may be completely invisible.”4 In justifying the proposed rules, the FCC explained, “[W]ell-functioning commercial marketplaces rest on informed consent.”5 ISPs were not happy about these new rules as it would cost them significantly to upgrade their infrastructure for the security requirements and lost revenue from selling consumer browsing history.6
Stay petitions on the new rules were filed by organizations composed of advertisers, telecom, broadband, ISPs, and other commercial groups sympathetic to ISPs. The FCC granted the stay on March 1, 2017.7 The Commissioner of the FCC, Michael O’Rielly, noted that “there has been no evidence of any privacy harms, and “no benefit to be gained from increased regulations,” while the new rules “place substantial, unjustified costs on businesses and consumers.”8
On March 23, 2017, the Senate passed a vote disapproving the stayed rules. Congress has the power to overturn agency rules with a simple majority through Chapter 8 Title 5 of the US Code.9 The vote was 50-48, with 50 Republican votes to overturn the rules against 48 Democratic votes to approve the rules, with two absent Republican Senators not voting.10 The vote will now go to the majority-Republican House where it will likely follow suit and throw the rules out.
Speaking of the vote’s outcome, Senator Edward Markey, a Democrat from Massachussets, said, “President Trump may be outraged by fake violations of his own privacy, but every American should be alarmed by the very real violation of privacy that will result of the Republican roll-back of broadband privacy protections. With today’s vote, Senate Republicans have just made it easier for American’s sensitive information about their health, finances and families to be used, shared, and sold to the highest bidder without their permission. The American public wants us to strengthen privacy protections, not weaken them. We should not have to forgo our fundamental right to privacy just because our homes and phones are connected to the internet.”11
After winning the vote, Senate Majority Leader Mitch McConnell justified overturning the regulation as it “makes the internet an uneven playing field, increases complexity, discourages competition, innovation, and infrastructure investment.”12
It is curious to note how strictly the vote the went by party lines. Republicans have been supporters of individual rights and privacy in some regards, but here the desire to let big business work things out amongst themselves seems to won out. From the 2016 Republican Platform, they give a statement on internet privacy:
“We intend to advance policies that protect data privacy while fostering innovation and growth and ensuring the free flow of data across borders…We intend to facilitate access to spectrum by paving the way for high-speed, next-generation broadband deployment and competition on the internet and for internet services.”13
Protecting data privacy is balanced with the need to foster innovation and growth: in this case it seems the need to foster innovation and growth won out. In other elements of the Republican Platform, the party is protective of individual rights against big business, such as medical records and farmers’ data.14 The medical records position is stated, “We applaud the advance of technology in electronic medical records while affirming patient privacy and ownership of personal health information.”15 On farmers’ rights, it reads “ We will advance policies to protect the security, privacy, and most of all, the private ownership of individual farmers’ and ranchers’ data.”16 Additionally, the Republican Platform generally opposes aerial surveillance on US soil, with the exception of observation over borders.17
It seems the Republican Party has some intentions to protect individual privacy rights, and even goes so far as to partly acknowledge it, so it is certainly surprising that not one Republican Senator was willing to vote against such a sweeping grant of ISP power.
Since it seems as though this will inevitably pass through the House, what can be done to protect privacy? Virtual Private Networks (VPNs) are perhaps the easiest way to circumvent ISPs, but there are some downsides. VPNs are completely unregulated, and can just easily sell your browsing history as an ISP if careful scrutiny and selection is not applied.18 One VPN company, Private Internet Access, is jumping on the opportunity by taking a full page ad out in the New York Times calling out the 50 Senators who voted to disapprove the rules, and the potential consequences of increased ISP access to private data.19
This is an unsavory turn which grants sweeping power to ISPs to monitor, package, and sell consumers’ browsing history and activity. Hopefully, some Republicans in the House will be more protective of their constituents’ privacy. Contacting your House Representative may help. If things continue along the same path, internet privacy is about to be substantially changed for the worse.
1 David Shepardson, U.S. Senate Votes to Overturn Obama Broadband Privacy Rules, Reuters (Mar. 23, 2017, 1:50 PM), http://www.reuters.com/article/us-usa-internet-idUSKBN16U2ER.
2 Protecting the Privacy of Customers of Broadband and Other Telecommunications Services, FCC 2500 (Mar. 31, 2016), https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-39A1_Rcd.pdf
3 Id. at 2502.
5 Id. at 2506.
6 Thorin Klosowski, The Senate Just Voted to Let Internet Sell Your Web History, Life Hacker (Mar. 23, 2017, 1:30 PM), http://lifehacker.com/senate-votes-to-let-internet-providers-sell-your-web-hi-1793574677.
7 Order Granting Stay Petition in the Matter of Protecting the Privacy of Customers of Broadband and Other Telecommunications Services, FCC 1 (Mar. 1, 2017), http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0301/FCC-17-19A1.pdf.
8 Id. at 5.
9 5 U.S.C § 8.
11 Edward J. Markey, Senator Markey Blasts GOP Roll-back of Broadband Privacy Protections, (Mar. 23, 2017), https://www.markey.senate.gov/news/press-releases/senator-markey-blasts-gop-roll-back-of-broadband-privacy-protections.
12 Shepardson, supra note 1.
13 Republican Platform 2016 6, https://prod-cdn-static.gop.com/static/home/data/platform.pdf.
14 Id. at 18, 36.
15 Id. at 36.
16 Id. at 18.
17 Id. at 13.
18 Klosowski, supra note 6.
19 Private Internet Access, A VPN Provider, Takes Out A Full Page Ad in the New York Times Calling Out 50 Senators, https://i.redditmedia.com/0kc4jJDVgLGbOI0TSY8hwQfcCPoY6ADX-MtA2vilf2s.jpg?w=576&s=f65699ffabac82dbdaf8e6fe8482e133.
Image Source: https://cdn.arstechnica.net/wp-content/uploads/2017/03/getty-house-of-representatives-800×534.jpg.