A Counterproductive Privacy Bill

[Commentary] Privacy activists appear to have some new friends among congressional Republicans. House Communications Subcommittee Chairman Marsha Blackburn (R-TN) and cosponsors have introduced comprehensive privacy legislation that would apply a strict new privacy regime across the entire internet ecosystem. The legislation, known as the Browser bill, results from legitimate concerns about an “unlevel” playing field across the internet ecosystem and a mistaken belief that recent congressional action repealing the Federal Communications Commission’s privacy rule, promulgated under former FCC Chairman Tom Wheeler, left consumers unprotected. In fact, Congress’s action was the first step in re-leveling the playing field and returning privacy enforcement responsibilities over internet service providers to the Federal Trade Commission, which had that job before the FCC classified broadband internet service providers as “Title II” common carriers in 2015. Common carriers are exempt from FTC jurisdiction. The FCC then filled the gap by promulgating its now-repealed privacy rule. The Browser bill would return privacy jurisdiction over ISPs to the FTC, but would do so under a new and restrictive regime.

The better route to reinstating FTC jurisdiction is to follow repeal of the FCC privacy rule with repeal of the Title II classification. The FCC now has a rulemaking underway intended to accomplish that objective, a much better course than new privacy legislation.

[Thomas M. Lenard is senior fellow and president emeritus at the Technology Policy Institute. ]