Several weeks ago I started a series of blogs I called
“Thinking Things Through.” The idea was –and remains – to focus on aspects of
the ongoing net neutrality controversy that I consider fundamental, even
foundational.
So, in the first, “Thinking
Things Through – Maintain That Line,” I contended, and I hope explained, why it is important
to keep Digital Age Internet services from being regulated in a public
utility-like fashion like telephone services were regulated throughout most of
the twentieth century.
In
the second, “Thinking
Things Through – Maintain That National Policy Line,” I contended that it is
important that digital broadband services not be subject to a patchwork of
state regulation inconsistent with the decades-old national policy favoring
light touch regulation of information services. In other words, this
second foundational proposition is essential to support the first.
And the third, “Thinking
Things Through – Maintain a Stable Legal Framework,” asserted that, if businesses are to grow and
prosper, and to invest and innovate, they need a stable legal framework which
provides clear, predictable rules. In other words, without a stable legal
framework that establishes “the rules of the road,” markets cannot operate
effectively and efficiently, if at all.
So,
to recap, the first three blogs contended that broadband Internet access
services should not be subject to a public utility-style regulation like
narrowband telephone services; that they should be subject to a national policy
of light-touch regulation; and that they should operate within a stable legal
framework.
As
most readers know, some Members of Congress are advocating adoption of a
Congressional Review Act (CRA) resolution to overturn the FCC’s December 2015 Restoring Internet Freedom Order, with a
“Day of Action” planned by CRA supporters for May 9. That surely is their
prerogative. Indeed, as a general proposition, and consistent with Congress’s
proper role in our tripartite constitutional system with its separation of
powers, I am not opposed to use of the Congressional Review Act.
Based
on the foregoing, I am, of course, opposed to use of the CRA to overturn the Restoring Internet Freedom Order because
the effect of such action would be to reimpose a regulatory regime at odds with
the foundational principles I already have articulated.
But
there would be another significant adverse effect – which heretofore has
received little notice. Just at the same time that – courtesy of the Facebook
controversy and other high-profile data breaches – there is significant
interest in ensuring that there are sufficient privacy safeguards in place to
protect consumers, the effect of adoption of the “net neutrality” CRA would be
to leave consumers with less privacy protection than they now have.
Here’s
why.
By reclassifying ISPs as Title II
telecommunications service (common carrier) providers, the 2015 Open Internet Order (“Title II Order”) had the deleterious effect
of eliminating the Federal Trade Commission’s jurisdiction over broadband ISP privacy
practices. After the
reclassification, in October 2016, the FCC adopted stringent privacy
restrictions on ISPs, including opt-in requirements, which were not applicable
to non-ISPs like web giants Google and Facebook, entities that collect far more
personal data over the Internet than ISPs. Under the FTC’s privacy regime,
these non-ISPs remained subject to considerably less stringent privacy protections
than those applicable to ISPs.
In light of the resulting asymmetric
and confusing privacy regulatory approach created by the FCC October 2016
action, Congress passed a Congressional Review Act resolution, signed by
President Trump in April 2017, overturning the FCC’s October 2016 privacy regulation.
Under the Congressional Review Act, the FCC is precluded from adopting a new
privacy regulation applicable to ISPs that is “substantially the same” as the
one overturned. Unsurprisingly, a primary argument against adoption of the
privacy CRA, by many of those same persons now supporting the “net neutrality”
CRA, was that its adoption would leave consumers unprotected.
By again classifying Internet
service providers as information service providers rather than
telecommunications carriers, the FCC’s Restoring
Internet Freedom Order had the salutary effect of restoring the FTC’s
jurisdiction to regulate the privacy practices of both the edge providers like Facebook and Google and the ISPs – and
to impose sanctions against both when
appropriate. In other words, at present, there is a symmetrical privacy
regulatory regime in place, with FTC enforcement authority, that protects
consumers of both the edge providers
and ISPs against privacy abuses. But if Congress were to adopt the “net neutrality” CRA, the
FTC’s symmetrical privacy regulatory regime would be eliminated. Consumers
would be left with less privacy protection.
It may well be, in light of
the “Facebook hearings” and other considerations, that the current Congress
will decide legislation is needed to clarify and/or strengthen existing privacy
protections. But, in the meantime, there
ought to be little doubt that the privacy protections in place now should be
maintained and enforced by the FTC.
That’s just one reason – but
a very good one – why Congress should not adopt the “net neutrality” CRA overturning
the Restoring Internet Freedom Order.
If Members of Congress want to protect consumers, their time will be much
better spent considering whether new privacy legislation is needed, rather than
reducing the protection that currently exists.
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