CRA Resolution Wouldn't Stop FCC From Developing Different Privacy Rules, FCC Critics Say
Critics of the FCC’s ISP privacy rules joined Monday to press for use of a Congressional Review Act (CRA) resolution of disapproval to nullify the regulations. A spokesman for Sen. Jeff Flake, R-Ariz., told us the CRA resolution likely is coming this week as soon as Tuesday. “There is no gap; it’s not the Wild West,” said 21st Century Privacy Coalition General Counsel Howard Waltzman during a press call hosted by Tech Knowledge, disputing claims from Sen. Ed Markey, D-Mass., and others that CRA use would create a regulatory void (see 1702270035). An aide to acting FTC Chairman Maureen Ohlhausen also slammed the rule and said the trade commission would work with the FCC to prevent any gaps.
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Flake is leading the effort in the upper chamber and House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., in the lower. Senate backers for this approach and pending resolution co-sponsors include Sens. John Cornyn, R-Texas, Marco Rubio, R-Fla., Roy Blunt, R-Mo., Mike Lee, R-Utah, and Rand Paul, R-Ky. (see 1703030068).
“One giant difference” between the FCC and FTC is the definition of sensitive consumer data, which for the FCC is “far broader” than the FTC’s and encompasses web browsing and app data, said Neil Chilson, attorney adviser to Ohlhausen, during Monday’s call. He viewed the FTC’s input on the FCC rules as “quite critical” and said any changes the FCC tried to make in its ISP privacy order last year were “more in style than in substance.” He defended the FTC’s privacy record. “We’ve brought over 60 cases in the data security area alone,” said Chilson, arguing this is relevant due to the data security portion of the rules that the FCC stayed in a 2-1 vote recently.
Waltzman, Chilson and others said passage of the CRA wouldn't leave consumers unprotected, pointing to Communications Act Section 222. “Section 222 of the FCC is still there” and “state [attorneys general] and other people can also look at ISPs in many cases,” said Chilson. Section 222 “still applies even if there are not specific rules,” said Waltzman. The CRA language would prohibit the FCC from developing substantially similar rules to the abolished ones but the FCC would still be able to fashion rules “much more comparable” to those of the FTC, insisted Waltzman, whose coalition includes ISPs. “It’s not like they’re precluded from acting in this space.”
“We hope that Congress is able to introduce a CRA soon and act quickly and we can get back to our status quo with letting the FTC do the great work it’s done,” said CTA Vice President-Regulatory Affairs Julie Kearney. “That is the CTA position.”
Jules Polonetsky, CEO of the Future of Privacy Forum, lauded the FTC’s ability to handle privacy issues and cited the recent Vizio case as an example of the FTC’s ability to act without a rulemaking. He believes a “motivated FTC will shape a strong standard to cover the data that we’re talking about here,” he said.
Waltzman also disputed that the 9th U.S. Circuit Court of Appeals' ruling that the FTC lacked jurisdiction over AT&T in a data throttling case would be an obstacle on these issues, as Sen. Brian Schatz, D-Hawaii, suggested (see 1702150056). “The CRA has no relationship with the 9th Circuit case,” Waltzman said, arguing it doesn't change the authority of either the FCC or FTC. “If necessary, I wouldn’t be surprised if members sought to address it legislatively to clarify it’s an activity-based exemption, not an entity-based exemption.” The FTC is prohibited from acting on ISP privacy due to the Communications Act Title II reclassification of broadband in the FCC’s February 2015 open internet order and on account of the FTC common carrier exemption. “I don’t know exactly what the FCC’s plan is in this area,” said Chilson, raising both a possible FCC change of broadband’s classification and possible congressional repeal of the common carrier exemption. “We will offer our comments and our thoughts to the extent that that would be helpful.”