Senate Passes Resolution to Repeal FCC's Problematic Privacy Rules

The U.S. Senate has now passed legislation to repeal the FCC’s flawed broadband privacy rules. S.J.R. 34 is based on the Congressional Review Act, and sponsored by Sen. Jeff Flake. The Senate’s passage of S.J.R. 34 is a welcome step toward establishing a single set of sound standards for online privacy that would apply to all online service providers.

The Commission arbitrarily imposed its intrusive privacy rules on broadband Internet broadband service providers, but not on other online service providers that collect personal information. Its rules include a problematic opt-in mandate only for ISPs seeking access to consumer information. That onerous opt-in mandate will confuse consumers and restrict the choices and amount of information that would otherwise be made available to them. Under the rules, the Commission also retains authority to review discounts and other so-called “pay for privacy” offers – but with no clear set of factors to guide its review. Such an open-ended review authority will also discourage new offerings that could benefit consumers. And the Commission’s broadband privacy rules far exceed the agency’s lawful authority under Section 222.  

These significant policy and legal shortcomings of the FCC’s broadband privacy rules were described more extensively in Reply Comments submitted to the Commission by Free State President Randolph May and I on March 16. Our Reply Comments were filed in response to Petitions for Reconsideration of the Broadband Privacy Order (2016) – which the Commission is now evaluating. Of course, reconsideration of the Order by the Commission would be a moot point if S.J.R. 34 is passed by Congress and signed by the President.

Hopefully, the U.S. House of Representatives will follow the Senate’s lead and promptly consider repealing the FCC’s broadband privacy rules under the CRA. Repeal of the FCC’s broadband privacy rules is a necessary first step toward establishing a sound policy for online privacy. Ultimately, the FTC should become the common enforcer of online privacy, applying the same basic standards to all online service providers.