ISP-Loyal Marsha Blackburn Pushing New Broadband Privacy Law, But It's A Hollow PR Show Pony With No Chance Of Passing

from the legislative-lambada dept

You might recall that Tennessee Representative Marsha Blackburn recently played a starring role in gutting FCC consumer broadband privacy protections using the Congressional Review Act. It was one of the more bare-knuckled examples of pay to play government in recent memory, and many of the straight GOP-line voters have been getting an earful from their constituents back home. Utterly unmoved, most of those lawmakers have quickly shifted on their heels and are now busy trying to gut net neutrality with the same blatent disregard for public opinion they showed while killing privacy protections.

In what appears to be largely a PR move to try and deflect significant criticism for her large ISP-friendly policies, Blackburn has subsequently introduced the BROWSER Act -- aka the Balancing the Rights of Web Surfers Equally and Responsibly Act. The act, as the FCC's now-discarded rules would have done, requires that consumers must opt in before a broadband provider is allowed to collect and sell subscriber information.

According to a Blackburn press statement on the legislation, killing the FCC's popular privacy protections, then introducing this new bill (which has little more than zero chance of passing for reasons we'll get into) was necessary to eliminate "confusion":

"As a Member of the House Homeland Security Committee's Cybersecurity Subcommittee, internet privacy and security must be a top priority. Step one in that process was to override any regulation that creates more confusion by giving jurisdiction to multiple agencies, only to have them regulate only one-half of the digital world. Step two in that process is to introduce comprehensive internet privacy legislation that will more fully protect online users in their use of Internet Service Providers (ISPs), search engines and social media,” said Fitzpatrick. “The BROWSER Act does just that. We must offer American citizens real internet privacy protection, not mere lip service which gives internet users false expectations about their level of online security. I encourage all House members who are serious about protecting our constituents' online privacy to join me in advancing this bill."

So, as we already noted in great detail, this appears to be part of a script that was hashed out months ago by the GOP. Step one is to gut FCC oversight authority over one of the least-competitive sectors in American industry by killing the privacy protections, walking back net neutrality, and dismantling the FCC's 2015 decision to classify ISPs as common carriers under Title II of the Communications Act. From there, the plan is to shovel any remaining oversight of giant broadband duopolies to an FTC Blackburn (and the ISPs that adore her) know is ill suited to provide meaningful, real oversight.

The FTC lacks rule-making authority, is already under-funded and over-extended, and AT&T lawyers have shown they may already be able to tapdance around the agency's authority anyway. This was all pretty well spelled out in a recent interview by former FCC boss Tom Wheeler, during which he called this particular plan a "fraud":

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

With the attacks on net neutrality and privacy becoming politically toxic, it's highly unlikely that Blackburn's proposal sees any serious support among Democrats. And because it actually would wind up expanding regulatory authority over "edge providers" (Netflix, Google, other content companies), it's not likely to see support among many Republicans, either. According to a joint statement made under the umbrella of the Internet Association, internet companies like Google, Netflix, and Twitter also oppose the new law:

We, along with a broad swath of the American economy, are aware of the BROWSER Act and are tracking the proposal. This bill has the potential to upend the consumer experience online and stifle innovation. Policymakers must recognize that websites and apps continue to be under strict FTC privacy enforcement and are not in an enforcement gap, unlike other stakeholders in the ecosystem.

This is all an arguably bizarre move for a politician that has shown, time and time again, that her very top priority is always the interest of giant ISPs like Comcast and AT&T -- coincidentally her top campaign contributors. Blackburn, who supported SOPA, has pushed legislation repeatedly trying to kill net neutrality under the banner of "restoring freedom." She's also gone out of her way to defend AT&T and Comcast's efforts to pass state-level protectionist laws hindering competition, which is a major reason her home state of Tennesee is one of the least connected states in the nation.

And this new privacy legislation -- which again expands regulation of internet content companies -- is also strange for a lawmaker that has consistently insisted over the years that "regulating the internet" kills innovation:

Which brings us to the multi-million-dollar question: if Blackburn is such an obvious servant to the interests of telecom duopolies, why is she pushing a law that would add regulatory burdens on both ISPs and content companies alike?

As the ACLU was quick to note in their review of the bill, the biggest goal appears to be to preempt a lot of the state and city regulations that have been popping up all over the country in response to the killing of the FCC's rules. More than 17 states have introduced privacy broadband rules in the wake of the death of the FCC rules, and whatever loophole-filled final draft Blackburn submits would be certain to preempt these already tougher protections:

In some cases, state legislation being considered is stronger than what would have been required under the FCC rules. For example, in New Hampshire, a bipartisan bill would prohibit providers from offering discounts to individuals who waive their privacy rights – something the ACLU urged but the FCC declined to do in its rules. Many states have also pressed for limits on not just the use but also the collection of information. ...Skepticism of Rep. Blackburn’s motives is also warranted given her voting history. Rep. Blackburn introduced the legislation to gut the FCC rules. If she had truly been interested in creating parity between the privacy standards applied to edge and internet providers, she could and should have worked to strengthen and replace the rules. Instead, she irresponsibly pushed for reversal of the rules, leaving an enormous privacy gap. Introduction of this legislation, which thus far shows no indication that it will become law and could easily be watered-down, does not remedy this reckless act."

Indeed, killing these state-level privacy protections does appear to be a top GOP priority after the March vote to kill the FCC rules. FCC majority Commissioners Ajit Pai and Mike O'Rielly have already said they plan to somehow prevent states from imposing such protections. You're to ignore that Pai and Blackburn have argued that anti-competitive protectionist laws written by the likes of AT&T are a "states' rights" issue, but now when states are looking to actually protect consumers it's a bridge too far.

But the primary reason Blackburn is pushing this proposal is that she knows it has absolutely no chance of passing, but may provide PR cover for her increasingly-obvious, duopoly-favoring telecom policy proposals ahead of the 2018 elections. Blackburn has been hammered in recent months via giant billboard ads purchased by activists criticizing her privacy sell out in her home state of Tennessee. There's nothing particularly subtle about the campaign:

Either way it's a win/win for Blackburn. If it passes, Blackburn's friends at AT&T and Comcast will ensure it's crafted to be aggressively weaker than state-level laws, overseen by an FTC they know won't have the authority, funding or time to actually police the subject. If it doesn't pass, it still functions as a marketing message designed to try and convince the voters that Blackburn isn't the anti-consumer Comcast coddler her voting record and campaign contributions clearly show she is.

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Filed Under: broadband privacy, browser act, isps, marsha blackburn, opt-in, privacy