Senate May Be Rare First Mover on ISP Privacy CRA

“It’s possible” the Senate may move first, Flake said in an interview Wednesday. “This may be the one. … We’re seeing now when we can schedule.”

The Senate GOP leadership is typically “taking the CRAs as they come from the House and deciding how to process them,” Senate Commerce Committee Chairman John Thune, R-S.D., told reporters. He said he wouldn't be surprised if the House waited on the privacy CRA due to healthcare overhaul debates this week. House Commerce Committee Chairman Greg Walden, R-Ore., is heavily engaged on behalf of those GOP efforts. “My guess is that the [Senate Majority Leader Mitch McConnell, R-Ky.,] will most likely again want to defer to the House on timing matters,” said Thune, one of the 21 Senate co-sponsors of Flake’s resolution. “It’s a lot easier for the House to move things and to do it in a timely way. A McConnell spokesman had no scheduling announcements on this CRA.

The Senate could move first, House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., said in an interview. A Blackburn aide confirmed the House CRA resolution was being introduced Wednesday with 16 original co-sponsors. “We’ve got a lot going on just this week,” Blackburn said, predicting a “pretty good” amount of backing for the resolution. On scheduling between the chambers, “we’re still trying to work that out,” she said.

“The FCC’s decision last October to unilaterally swipe jurisdiction from the FTC by creating its own privacy rules for ISPs was troubling," Blackburn said in a statement. "The FTC has been our government’s sole online privacy regulator for over twenty years. A dual regulatory approach will only serve to create confusion within the Internet eco-system and harm consumers. This is a bi-partisan issue, as Democrats have also voiced concerns about the potential for consumer harm resulting from the FCC’s overreach. We look forward to rolling back these anti-consumer rules and returning jurisdiction to the FTC.”

During a Wednesday Senate Commerce Committee FCC oversight hearing (see 1703080070), Thune pressed FCC Chairman Ajit Pai on the topic, asking if consumers would be left unprotected if the ISP privacy rules were destroyed or whether carriers still would be obliged to protect them under Communications Act Section 222. “That’s correct,” said Pai of industry obligations. The FCC 2-1 stayed some of the privacy rules recently.

Sen. Ed Markey, D-Mass., slammed the CRA during the hearing and called Pai's stay a “preview of coming attractions” in Pai’s rollbacks. “The rules are on the books,” Markey said. “The broadband providers don’t like it. They are definitely in a situation where they think they can find an escape of having robust privacy protections.” Sen. Ron Johnson, R-Wis., criticized the privacy rules and said there’s a need for a level playing field for industry. Pai agreed and said there should be no need for lawyers or engineers and backed an “even regulatory set of requirements for everyone who is competing in this space.”

Democrats were irate about Flake’s resolution. “This procedural gimmick wouldn’t just roll back the FCC’s current broadband privacy rules, it would hamstring the agency,” said House Commerce Committee ranking member Frank Pallone, D-N.J., in a statement. “Republican privacy CRA is another ‘repeal’ without ‘replace,’” tweeted Sen. Brian Schatz, D-Hawaii. “Anyone who cares about online privacy should be furious.”

Public interest and industry groups were widely split this week on the CRA. The resolution enactment “will in no way lessen [American Cable Association] members' dedication to protecting their customers' privacy, and they will continue to be subject to the privacy requirements in Section 222,” said President Matt Polka. “Passage of this resolution would return us to an environment in which broadband consumers receive consistent and uniform protection of the privacy of their personal information from all entities in the Internet ecosystem,” ITTA President Genny Morelli said. The Information Technology Industry Council lauded the move.

New America's Open Technology Institute slammed the CRA as a sledgehammer approach. Consumer Federation of America’s Susan Grant said it’s a “give-away to big corporations and a slap in the face of Americans who rely on the internet as an essential communications service.” Expect “more uncertainty and less privacy,” said Center for Democracy & Technology Vice President Chris Calabrese. "Sen. Flake and some of his colleagues seek to wipe out consumers’ rights to control personal data," said Public Knowledge Policy Fellow Dallas Harris. "Passing this bill will leave a huge gap in consumer privacy protections with no end in sight, and no future relief from the FCC."

Pai’s stay of certain of the rules isn't a move that “absolves Congress of our responsibility to act,” Thune told reporters. “Congress’ action has more permanence attached to it than action by the FCC. And we have a high level of interest. We have a lot of members who want to have the vote. There’s a certain political equation that comes into play.”