Internet privacy advocates are mourning the death of online privacy rules, but yesterday's House vote to eliminate the consumer protections was celebrated by ISPs, advertisers, and Federal Communications Commission Chairman Ajit Pai.

The rules would have required home Internet and mobile broadband providers to get consumers' opt-in consent before selling or sharing Web browsing history, app usage history, and other private information with advertisers and other companies.

FCC Chairman Ajit Pai has consistently agreed with ISPs that they should not face stricter rules than website operators like Google and Facebook. Pai, a Republican, was in the commission minority when the rules were passed last year, but Republicans now have a majority on the FCC.

“Last year, the Federal Communications Commission pushed through, on a party-line vote, privacy regulations designed to benefit one group of favored companies over another group of disfavored companies," Pai said after yesterday's vote. "Appropriately, Congress has passed a resolution to reject this approach of picking winners and losers before it takes effect."

"Congressional action to repeal the FCC’s misguided rules marks an important step toward restoring consumer privacy protections that apply consistently to all Internet companies," said NCTA—The Internet & Television Association, the cable industry's biggest lobby group.

The American Cable Association praised Congress for "revers[ing] the harms associated with the FCC's unwarranted and burdensome broadband privacy regulations that singled out ISPs while exempting giant Internet edge providers, who have as much, if not more, access to similar consumer data." USTelecom called the vote "another step to remove unnecessary rules and regulations that handicap economic growth and innovation."

CTIA, which represents mobile broadband providers, thanked Rep. Marsha Blackburn (R-Tenn.) "for her leadership in helping to restore regulatory clarity, ensure consistency across our digital economy, and eliminate unnecessary, duplicative regulations.”

In reality, the FCC regulations were not duplicative because there are no other FCC or Federal Trade Commission privacy rules specifically for broadband.

Blackburn introduced the House version of a resolution approved yesterday by a vote of 215-205. The same resolution to eliminate the privacy rules was approved by the Senate last week, and it's expected to be signed by President Donald Trump.

“The House and Senate got it right on the ISP regulations," said the Data & Marketing Association (DMA), one of six advertising industry trade groups that previously urged Congress to kill the privacy rules. "If these rules were to be enacted, they would disrupt the framework that has allowed the marketing ecosystem to responsibly use data to develop vital services that consumers now rely upon while also injecting dynamic innovation and growth into the U.S. economy."

The DMA said the vote "is a signal that the current self-regulatory system works.”

Democrats and privacy advocates fight on

After the vote, Sen. Ed Markey (D-Mass.) immediately pledged to introduce legislation to reinstate the broadband privacy rules.

“The Republican-controlled Congress wants broadband companies to use and sell sensitive information about Americans’ health, finances, and even children without consent,” Markey said. "In light of this Republican roll-back, I plan to introduce legislation that directs the FCC to reinstate strong broadband privacy rules.”

Democrats in the House and Senate were united in support of keeping the privacy rules in place. Senate Republicans all voted to eliminate the rules, and most House Republicans did as well.

Fifteen House Republicans voted to preserve privacy rules, but no Republicans took the additional step of speaking in opposition to the rules during the House floor debate. Full vote results are available here.

Civil rights advocacy group Color of Change blasted Republican lawmakers. “By voting to revoke Americans’ right to online privacy, House Republicans have shown us they plan to continue enabling Donald Trump’s plot to plunder America, starting with black folks," Color of Change Executive Director Rashad Robinson said. "The data that big corporations collect from black broadband users leads to predatory marketing, which starts at a young age and lasts throughout our lives. Without the crucial FCC regulations implemented last year, black and marginalized communities will continue to experience online price gouging, data discrimination, and digital redlining."

The House "abandon[ed] consumers in [the] vote to dismantle Americans’ online privacy," consumer advocacy group Public Knowledge said.

"Once President Trump signs this resolution, there will be no effective federal cop on the beat to proactively protect consumer information collected by ISPs," said Dallas Harris, an attorney who specializes in broadband privacy and is a policy fellow at Public Knowledge. "Without the FCC’s broadband privacy rules, Americans go from being Internet users to marketing data—from people to the product. Congress has sided with ISPs over consumers. Americans won’t forget."

Future of privacy rules

Republicans argued that the Federal Trade Commission should be the agency to regulate ISPs, since it already regulates privacy practices of other companies including website operators. But that's impossible under current regulations, because the FTC is barred from regulating common carriers such as ISPs and phone companies. The FCC would have to change its classification of ISPs—a step that would also eliminate net neutrality rules—in order to return jurisdiction to the FTC. Even if the FCC does that, further congressional action may be needed to give the FTC authority over ISPs because of a federal appeals court ruling in August 2016 that said AT&T was exempt from FTC oversight even when it offers non-common carrier services.

The FTC privacy guidelines are also less strict than the ones written by the FCC for Internet service providers. As we've previously written, the FTC recommends opt-in consent before selling or sharing the most sensitive information, such as Social Security numbers, the content of communications, financial and health information, information about children, and precise geo-location data. But the FTC guidelines allow an opt-out system for everything else, including Web browsing and app usage history.

Pai said the FCC and FTC will work together to reinstate some form of privacy protections for broadband customers.

“Moving forward, I want the American people to know that the FCC will work with the FTC to ensure that consumers’ online privacy is protected through a consistent and comprehensive framework," Pai said. "In my view, the best way to achieve that result would be to return jurisdiction over broadband providers’ privacy practices to the FTC, with its decades of experience and expertise in this area.”

The FCC opt-in requirements were scheduled to take effect as early as December 4, 2017. Pai already took action to halt implementation of data security requirements that were part of the privacy rulemaking and would have taken effect this month.

For more on how eliminating the rules affects Internet users and how you can hide your Internet traffic, see our recent article, "How ISPs can sell your Web history—and how to stop them."