Democrats should get on board with repeal of FCC privacy rules

They claim that Republican Federal Communications Commission Chairman Ajit Pai is about to leave consumers totally unprotected from broadband providers who might use (or fail to secure) information gathered about them. A press call on Monday put out a flurry of mixed metaphors: Republicans want a “black hole” or an “unregulated Wild West” for broadband privacy.

{mosads}Nonsense. This is a complete fabrication contrived for purely political purposes.

According to (totally unsurprising) news “leaked” Friday, Pai is simply asking for a vote to stay the specific rules issued by the FCC just before the election. That’ll give the FCC time to decide what authority, if any, the agency has over broadband. Republicans have always believed broadband providers aren’t Title II common carriers. Returning to the pre-2015 status quo will send broadband back to the Federal Trade Commission, which handles all other Internet consumer protection issues. Staying the privacy rules in the interim won’t leave consumers unprotected because the FCC can enforce Title II of the Communications Act directly, on a case-by-case basis.

That’s not some crazy Republican idea. That’s how the Democratic FCC handled privacy over the last two years — at least, before the formal regulations were issued in October. Back in May 2015, the FCC explained that it would do case-by-case policing of Section 222. That’s the provision of Title II that speaks directly to privacy issues. In fact, the FCC has even broader powers under Section 201(b) — to assure that all practices of Title II common carriers are “just and reasonable.” Staying the Broadband Privacy Order just means the new Republican FCC will use these powers to keep a watchful eye on privacy.

Not having formal rules on the books does mean less certainty for companies, but they’ll manage. It puts just one constraint on the commission: it couldn’t impose monetary penalties the first time it finds a practice unlawful — but it could the second time.

Over the last two years, the FCC has settled just one broadband privacy enforcement action: against Verizon for failing to disclose that it had inserted “supercookies” into mobile wireless traffic to service targeted ads. That one case hardly suggests that there’s a problem in the industry — but does demonstrate that the FCC could police broadband privacy case by case.

So fast forward to when the FCC says broadband isn’t a Title II service — which is only a question of time. That’ll restore the FTC’s jurisdiction, so broadband privacy will be policed just like all online privacy.

Markey et. al. made three objections this week. First, that the FTC can only punish companies for breaking their promises to consumers. Wrong. The FTC can punish not only deception, but also unfair practices. The FTC has broad latitude to decide what those are — and has been very, very aggressive in using that unfairness power over both privacy and data security.

Second, Democrats claim the FTC can’t issue formal rules. Actually, it can, but it would need more evidence of a problem than an FCC rulemaking would. That’s because Congressional Democrats wisely realized, back in 1980, that such sweeping power required special safeguards. Instead, Congress has given the FTC specific grants of normal rulemaking powers over specific areas — like child privacy. Congress has debated giving the FTC such power over privacy and data security since 2000, with even Republicans proposing their own bills. Legislation could pass now, if Democrats are willing to do what Congress hasn’t really done since 1980: re-examine how the agency works.

Third, Democrats do make one fair point: when the FCC undoes Title II reclassification, the FTC may not entirely regain jurisdiction over broadband — whether for privacy or net neutrality. Last year, three federal judges in California issued a complicated decision that could — even after the FCC undoes Title II — deny the FTC jurisdiction over broadband providers that also provide a common carrier service, like telephony. The full Ninth Circuit may soon reverse that decision.

But even if they don’t, the legislative solution is an easy lift: Democratic and Republican FTC commissioners have been asking Congress to give the FTC jurisdiction over common carriers for two decades. Congress could pass such legislation even before the FCC finally resolves the question of its legal authority that has driven the net neutrality debate for over a decade.

One other effect of undoing Title II reclassification that never gets mentioned: states will regain their enforcement powers, too. So even if you think the FTC won’t be aggressive enough, California, New York, and other Democratic attorneys general certainly will.

In short, whatever happens, there will be a privacy cop on the beat at every step of this process. Sooner rather than later, the lead cop will be the FTC. It’s time for members of Congress on both sides to stop the political grandstanding and start talking about the future of how the FTC regulates not just broadband, but all technologies.

Berin Szóka (@BerinSzoka) is president of TechFreedom, a non-partisan think tank dedicated to technology policy.

The views expressed by contributors are their own and are not the views of The Hill.