Congress, FCC Take Aim at Consumers' Data Privacy

A ruling by the Federal Communications Commission and two joint resolutions introduced in Congress would make it harder for consumers to keep their personal information private.

by / March 10, 2017

Recent moves by the Federal Communications Commission (FCC) and Republicans in Congress aim to significantly loosen Americans’ control over keeping their data private.

On March 1, the FCC approved an interim stay sought by nine trade associations of rules in former President Barack Obama’s 2016 Privacy Order — halting data security requirements that would have taken effect the following day.

The order, the FCC admitted in its ruling, had much to say about data security.

It would have required broadband Internet access service (BIAS) providers and other telecommunications carriers to “take reasonable measures to protect customer [proprietary information] from unauthorized use, disclosure, or access.”

The order described “factors that a provider must consider,” including “the sensitivity of the data it collects,” and would have prescribed “harmonized” data security requirements for BIAS providers and carriers.

The trade associations, however, argued that the order would present them with “substantial costs and burdens” that would cause “irreparable harm” and run contrary to the public interest.

The order’s interpretation of a “reasonable measures” standard on privacy, the associations argued “substantially widen[s] the uncertainty and compliance burdens imposed upon Internet service providers (ISPs) relative to all other Internet entities and heighten[s] the risks of different interpretations.”

In its stay of the data security requirements, the FCC found the associations’ arguments would likely succeed in court on their own merits; that they would indeed be harmed without the stay; and even that “the public interest would favor grant of the stay.”

“Requiring these companies to incur additional costs and allocate significant resources toward implementing requirements that the Commission is reasonably likely to revise upon reconsideration is wasteful and counterproductive to the public interest,” the FCC ruled, noting there was “no evidence of harm to consumers. …”

Commissioner Mignon L. Clyburn dissented, and wrote: “With a stroke of the proverbial pen, the Federal Communications Commission — the same agency that should be the 'cop on the beat' when it comes to ensuring appropriate consumer protections — is leaving broadband customers without assurances that their providers will keep their data secure.

And on Tuesday, March 7, Sen. Jeff Flake, R-Arizona, introduced Senate Joint Resolution 34, a measure backed by 34 of his colleagues, that would “provide for Congressional disapproval” of FCC rules “relating to ‘Protecting the Privacy of Customers of Broadband and Other Telecommunications Services.'”

The resolution would ensure the FCC rules “shall have no force or effect.”

This, Business Insider's Jeff Dunn wrote, means "the entire set of privacy rules is on the chopping block," and if approved the resolution would allow sales of consumer data unless they opt out — including their locations, financial and health information, their browsing and apps usage histories, and children’s information.

Flake's resolution would undo the FCC rules under the Congressional Review Act, which lets Congress review and overturn recent federal regulations with a simple majority vote and the president’s signature.

“Right now, that means the GOP can unravel any Obama-era regulation finalized since June 2016,” Business Insider’s Rafi Letzter wrote in February.

A virtually identical measure introduced Wednesday, March 8 by Rep. Marsha Blackburn, R-Tennessee, House Joint Resolution 86 seeks to accomplish the same goal.

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