The fight over internet privacy is entering a new stage.
The Republican chairman of the Federal Communications Commission is moving to roll back his agency’s net neutrality rules, a plan critics warn could deal another blow to online privacy protections.
It comes on the heels of Republicans repealing Obama-era rules that would have required internet service providers to get customer consent before sharing their data, putting digital privacy back in the national spotlight.
Both sides are quickly gearing up for the next fight.
“We don’t see having weaker privacy rules than we had — and weaker net neutrality rules than we still have — as any kind of acceptable trade,” said Matt Wood, policy counsel for the group Free Press.
FCC Chair Ajit Pai met with broadband industry lobbyists last week to preview his plan to repeal net neutrality, which requires internet providers to treat all web traffic equally. If it’s repealed, privacy advocates fear Republicans will leave another big hole in the federal government’s enforcement of privacy rules.
At issue is which, if any, federal agency will regulate what companies can do with a wide swath of consumer information, from browsing history and app usage to location data. And it involves a complicated turf war between the FCC, and the Federal Trade Commission (FTC), which traditionally enforced privacy rules.
The FCC’s net neutrality rules treated broadband providers as common carriers, regulating them like public utilities. That gave the FCC oversight of internet providers’ like Comcast and AT&T’s privacy practices, while leaving web companies like Google and Facebook under the FTC’s separate framework.
A federal judge in 2016 reinforced that divide, ruling that the FTC could not regulate companies classified as common carriers.
Privacy groups say that decision put companies that offer both phone and internet services, the telecom titans that serve most Americans, under the FCC’s watch. Just repealing net neutrality, they say, won’t return them to the FTC’s oversight, instead leaving many companies without any privacy regulator.
The court case is up for appeal, but for now net neutrality supporters are painting a dire picture of companies with no limits on how they use consumers’ data.
Pai’s net neutrality repeal would “deprive consumers of both net neutrality and broadband privacy protections,” because of that court decision, said Gigi Sohn, an adviser to former Dem FCC Chair Tom Wheeler, in a recent op-ed for The Verge.
“This is something that Ajit Pai and Republicans in Congress have made more complex,” Wood said, accusing them of creating “uncertainty” over who regulates Americans’ digital privacy.
Pai’s plan for rolling back net neutrality would give up the FCC’s authority over broadband companies, in exchange for them voluntarily promising to adopt many net neutrality principles. He’s called net neutrality a “last-century, utility-style regulation” applied to “today’s broadband networks.”
Net neutrality opponents say the fears about what will happen to online privacy rights are overblown.
Berin Szoka, president of TechFreedom, which opposes the net neutrality rules, believes Congress can easily decide on a privacy regulator.
“This really isn’t all that complicated,” Szoka said, “whatever that case actually means, the legislative fix here is a one-page bill and it will pass.”
“It seems to me that’s something that Congress could do, and that there would be some bipartisan support for removing that common carrier exemption,” said Randolph May, head of the free market group Free State Foundation, which also opposes net neutrality.
May said the division between who should regulate phone companies and internet companies is outdated now that most Americans get those services from the same provider.
“It really doesn’t make much sense in today’s digital world with the convergence of all of the platforms that provide internet service,” he said.
Net neutrality opponents tout legislation restoring the FTC’s sole privacy oversight as a quick fix.
But privacy advocates aren’t sold. And they worry that with the situation in flux, industry groups will push hard to prevent any tough privacy enforcement. Some in the telecom industry have long fought against tough regulation from the FTC.
With Pai poised to roll back net neutrality, Sohn predicted that congressional Republicans would take their cues from broadband providers.
“You know, right now Republicans are taking their marching orders from the big [internet service providers] ISP’s,” said Sohn.
Republicans faced a backlash after President Trump signed the bill repealing FCC internet privacy rules earlier this month.
The GOP and industry advocates argued those rules unfairly subjected broadband companies to restrictions that didn’t apply to web companies, which also collect consumer data for advertising. But polls showed most Americans still opposed the privacy repeal.
With net neutrality now on the chopping block, advocates say they intend to keep the privacy fight on center stage and shine a spotlight on companies’ practices.
Those companies are walking a cautious line.
AT&T was one of the broadband companies that pushed to repeal the FCC rules and also sought to limit the FTC’s oversight in the 2016 court case.
For now, it’s being tight-lipped on where it stands over restoring the FTC’s privacy authority.
An AT&T spokesman pointed to a January statement from Joan Marsh, their vice president for federal regulatory issues.
“Any effective regulatory approach to privacy should protect information in a consistent manner based on its sensitivity, create uniform standards for the entire ecosystem and, ultimately, be enforced by a single government agency,” Marsh said.