What has changed with repeal of internet privacy rules? Not much
Friday, April 07, 2017
Last year, the Federal Communications Commission (FCC) passed new privacy rules under Section 222 of the Communications Act. Hailed as a huge win for consumer advocacy and civil liberties groups, the rules required internet users to give their internet service provider (ISP) an affirmative opt-in if their ISP wanted to access information like location data, app usage and internet browsing histories.
As was the case with just about every recent headline-grabbing FCC ruling in recent years, the Commission voted 3-2 along party lines, with Democrats Tom Wheeler, Jessica Rosenworcel and Mignon Clyburn voting in favor of the new rules, citing consumer rights, and Republicans Ajit Pai (who is now the FCC chairman) and Michael O'Rielly voting against, claiming the new rules were harmful to business.
Even if you're the biggest follower of federal tech policy, you could be excused for not noticing these regulations, as they were passed Oct. 27, a mere 12 days before last year's presidential election. That election is a substantial part of why the regulations won't go into effect as scheduled later this year.
President Donald Trump officially repealed the rules April 3 under the Congressional Review Act (CRA). The CRA allows for regulations passed during the last 60 days of the previous congressional legislative session to be repealed by both houses of Congress and signed off by the president during the first 60 days of the next legislative session. The law also prevents similar regulations from being enacted by federal agencies for a set period of time.
The CRA was passed in 1996 and had been used only once in its first 20 years as law. But with Republicans now controlling both houses of Congress and the presidency, the CRA has been used 11 times so far in 2017.
And while the repealed regulations cover things as wide-ranging as educational standards, employer recordkeeping and wildlife protection, none of the 11 has been as controversial to this point as the scrapped FCC privacy regulations.
Even before Trump's signature put the repeal into law, Congress came under fire from multiple sides of the political spectrum as well as from employees of tech companies like Twitter and Slack. After the allowance of ISPs to access, share and possibly sell user data, actor Misha Collins even started a crowdfunding effort aimed at purchasing Trump's and Congress's data. As of April 6, that GoFundMe page has raised more than $86,000.
There's a big problem with this approach of trying to stick the privacy repeal back in the face of Trump and Congress, though: It's almost certainly illegal, and individually identifiable data will still be off-limits for ISPs.
And while the possible idea of the company you pay for internet access each month collecting and using your data for marketing and targeting purposes rightly alarms consumer advocates, there's significant doubt about whether the repeal of the regulations that weren't even in effect yet changes much about the way data is collected on the internet.
"Consumer-privacy advocates are right to be outraged. Unfortunately, the horse left the barn a long time ago," tech engineer and commentator Elaine Ou writes in Bloomberg View. "Internet service providers have been tracking and selling customer activity since the early days of dial-up."
Another argument is that the regulations' repeal essentially lets them do what companies like Facebook and Google have been doing for years in targeting advertisements and other marketing opportunities to users. Of course, internet subscribers don't have to use Google or Facebook if they don't want to, while they do have to employ the services of an ISP.
One clear consequence of the privacy regulations' repeal is that internet privacy issues are now likely to be adjudicated by the Federal Trade Commission (FTC).
Current FCC Chairman Pai favors this approach, and privacy complaints were previously handled by the FTC before Wheeler's FCC took control of them. However, the FTC looks at complaints and decides to bring lawsuits (or not) based on activity that has already occurred, while the FCC regulates the communications world more generally and thus, often more pre-emptively.
Another result of the repeal maybe that internet customers try to utilize tools to cloak their internet activity, like a virtual private network (VPN). Per Google, interest in VPNs spiked in the U.S. during the last week of March, when the privacy repeal made its way through both houses of Congress. VPN services might not be a panacea for internet users wanting privacy, but using browser extensions that employ the secure HTTPS protocol may help, too.
We can't know yet how the scrapped regulations will affect the internet users' daily web experience, or if the customers of the largest ISPs will even be able to notice the potential increased targeting and marketing opportunities their data could produce.
What's sure at this point is that the White House and the FCC are more pro-big business than they were a few months ago. That bodes well for the nation's largest ISPs but not for consumer advocates.
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