The Battle Lines over Internet Privacy and Net Neutrality are Joined
March 10, 2017 | by Andrew Regitsky
A year from now, we will almost surely be able to look back at this week and proclaim that the newest regulatory battle over the Internet began in earnest. Here’s why we view this week as so important.
Republicans introduced legislation to ensure that ISPs do not face more stringent privacy rules than edge providers, while more than 170 consumer advocate groups sent letters to the FCC imploring the agency to keep the net neutrality and privacy rules in place. For his part, President Trump ensured the Internet battle would rage by re-nominating FCC Chairman Alit Pai to a new five year term as an FCC commissioner, locking in the chief advocate of limited Internet regulation as FCC Chairman for the entire term of the Trump administration.The Republican resolution, introduced by Arizona Senator Jeff Flake is simple, stating that Congress disapproves of the FCC 2016 Privacy Order with its more stringent requirements for ISPs in the handling sensitive customer data. According to Flake:
The FCC's midnight regulation does nothing to protect consumer privacy. It is unnecessary, confusing and adds yet another innovation-stifling regulation to the internet. My resolution is the first step toward restoring the FTC's light-touch, consumer-friendly approach. It will not change or lessen existing consumer privacy protections. It empowers consumers to make informed choices on if and how their data can be shared.
In parallel, the FCC is also working to ensure that ISPs and edge providers have similar privacy rules. Last week the Commission stayed the sensitive data ISP requirements while it reviewed the petitions for reconsideration against the Privacy Order. Congress, of course, can quickly settle this issue much more quickly than the FCC. However, it is hard to envision any Democrats signing on to the Flake legislation.
The fight over net neutrality has been slower to develop than privacy because the Open Internet Order has in effect for a couple of years, and there is no ready regulatory vehicle for the FCC to attack it other than beginning a new proceeding. Congress has certainly discussed the issue enough, but just like privacy, there is little agreement between the political parties. In the meantime, consumer groups are not waiting to take action. In a March 7, 2017 letter to Pai, more than 170 consumer advocate groups explained why the net neutrality rules must stay in place:
Protecting net neutrality is crucial to ensuring that the internet remains a central driver of economic growth and opportunity, job creation, education, free expression, and civic organizing for everyone. The principles of net neutrality – that all data on the internet should be treated equally, and internet service providers (ISPs) should not discriminate or provide preference to any data, regardless of its source, content, or destination – are the foundation that has made the internet the engine of opportunity it is today. The continuation of net neutrality is essential to the continued growth of the country and to ensuring access to social, political, and economic empowerment for all. In 2015, millions of people made their support for net neutrality clear in comments to the Federal Communications Commission (FCC) supporting the Open Internet Order. The order, which reclassified broadband internet under Title II, enshrined the principles of net neutrality in law, and gave the FCC the authority to enforce it. As a result, broadband providers cannot block users’ access to content, slow down connections to services, or charge for speedier delivery of preferred content.
Finally, Chairman Pai’s re-nomination to the Commission was expected and will almost certainly be approved by the Republican dominated Senate. His re-nomination was cheered by large ISPs and their advocates. For example, former FCC Chairman and now president and CEP of NCTA stated “In just a few short months, Chairman Pai has embarked on a thoughtful, pro-consumer agenda that focuses on promoting Internet freedom and expanding the benefits of broadband to all Americans.”
Not everyone thinks that Pai is so “pro-consumer” however. At his first Senate subcommittee meeting this week, Democratic Senator Bill Nelson stated:
[Pai][a]cted to prevent millions of broadband subscribers from receiving key information about the rates, terms, and conditions of their service; 2) Acted to guarantee that broadband subscribers will have less protections with respect to the security of their online data, while promising to further weaken the duties broadband providers owe to protect the web browsing history and other personal information of their paying subscribers; 3) Threatened the expansion of broadband into the homes of low-income Americans by limiting the effectiveness of new Lifeline program reforms; and 4) formally rescinded an FCC staff report detailing the implementation of the agency’s comprehensive E-Rate modernization effort.
So what come next? Look for the FCC to determine if Congress will plow into the net neutrality mess. If it does not, Pai has made it clear he will, and it will probably occur before the end of this year.
