The FCC’s broadband privacy regulations are gone. But don’t forget about the Wiretap Act.

President Donald Trump recently signed a congressional resolution completing the repeal of broadband privacy rules announced by the Obama-era Federal Communications Commission. According to news reports, the purpose of the repeal was to allow broadband Internet service providers to conduct the same sort of monitoring of user online activities, such as Web-surfing habits, that companies like Google and Facebook can conduct. I don’t know much about communications law or the proposed regulations. But the description of what the repeal was designed to do made me wonder: Isn’t that kind of monitoring mostly illegal under the Wiretap Act?

As I see it, the Wiretap Act substantially limits what kinds of surveillance broadband providers can conduct even without the Obama-era rules. Given that, it’s not clear to me how much the repeal actually matters. I have been told that [the arguments I described] never entered the debate over the FCC regulations because communications lawyers just don’t think about the Wiretap Act. The Wiretap Act is a criminal statute in Title 18, and it’s just something off the radar screen of lawyers who practice communications law. If so, that should change. Depending on what the broadband providers want to do, the Wiretap Act may be a serious bar to the companies doing it legally. And given the hammer of statutory damages that the Wiretap Act allows, a mistake that implicates the Wiretap Act might end up as a very costly mistake.