State Lawmakers Resuscitate ISP Privacy Push in 2018
Democratic state lawmakers are promising another run at ISP privacy rules this year as legislative sessions open. Legislators recently introduced fresh bills countering congressional repeal of the FCC broadband privacy rules in states including Florida, Kentucky, Vermont and Wisconsin (see 1801080044), and many of last year’s state bills that didn’t get final votes will carry over into 2018 sessions, said state legislative association officials. State lawmakers backing the bills told us they’re not daunted by 2017 failures or possible federal pre-emption. But the more recent controversial take-back of 2015 FCC net neutrality rules is spurring many state bills and could take attention from privacy (see 1712210034), some observers said.
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Twenty-two states and the District of Columbia considered ISP privacy bills in 2017, according to a National Conference of State Legislature webpage updated Jan. 2. “Although none passed last year, many of the 2017 bills are carryovers that are still pending,” said NCSL Senior Fellow Pam Greenberg. A drop-off in the number of bills isn't likely, but the issue has become more partisan and state net neutrality efforts could “distract” states, said American Legislative Exchange Council (ALEC) Communications and Technology Task Force Director Jonathon Hauenschild.
Washington state lawmakers reintroduced House and Senate ISP privacy bills. The Senate Energy, Environment and Technology Committee scheduled a hearing for Thursday on SB-5919. The bill, introduced Monday, would ban ISPs from collecting personal information from customers without opt-in consent or from refusing to provide services to customers on that basis. Rep. Drew Hansen (D), also sponsor of a state net neutrality bill, Monday reintroduced the House version, HB-2200. The House passed that bill three times in 2017, but last year’s GOP-controlled Senate never took it up. Hansen’s bill is unchanged, but state politics are different this year because Democrats now control both chambers and the governor’s office, Hansen said in a Tuesday interview. The House must vote again to send the bill to the Senate, he said. Hansen hasn’t seen the latest version of state senators’ privacy bill but plans to coordinate, he said.
Hansen disagreed net neutrality will distract from making state ISP privacy laws. “Those goals are not at all in tension, and there’s no reason why -- using our consumer protection authority -- we can’t move forward on both,” he said. Hansen dismissed FCC pre-emption threats on either issue. “The FCC doesn’t get to decide what kind of pre-emption authority they have,” he said. “They don’t have any pre-emption authority unless there is a constitutional or statutory provision granting them that authority.”
Neither will federal pre-emption threats stop a Florida state senator who Friday offered an ISP privacy bill. Florida has legal authority to protect consumers, he said. “There are certainly pre-emption concerns," Sen. Jose Rodriguez (D) said in an interview. But "other states are attempting to do something similar" and the issue is "important enough that ... we should proceed with the idea of working out the scope of it as the parameters of pre-emption, if any, are defined.”
California and Minnesota lawmakers also plan to revive their ISP privacy bills. Minnesota state Rep. Paul Thissen (D) told us he’s optimistic even though last year the proposed rules got cut from an omnibus jobs bill (see 1705230023). Lawmakers from both parties initially supported adding the rules to the omnibus. “There remains public outrage that the bill last year passed 200-1 and yet was dropped after behind closed doors negotiations,” Thissen said. “The added impact of changes to net neutrality make the political climate just that much more receptive to more consumer protection.”
California Assemblymember Ed Chau (D) “intends to move forward with the bill” that failed to pass the legislature last year, a Chau spokesman said. AB-375 passed the Assembly by a 77-0 margin, but the full Senate never voted.
A Connecticut working group will make legislative recommendations about protecting consumer privacy, said task force member and Connecticut Consumer Counsel Elin Katz in an interview. Section 555 of a 2017 state budget law established the group. The task force hasn't convened due to Connecticut budget talks taking lawmakers’ priority, she said. “If we got a decent bill together fast, it would have a good chance,” she said. But Katz agreed countering the FCC net neutrality action might consume some states' attention: “That’s the progressive vanguard at the moment.”
“All the proposals have one thing in common,” said ALEC’s Hauenschild, who supported congressional repeal of the FCC broadband privacy rules. “They are all introduced and supported by Democrats.” That shows “an increased partisan divide, with Democrats pushing the bills and Republicans turning to existing state consumer protection regimes,” he said. North Carolina state Rep. Jason Saine, also ALEC 2018 national chairman, is one Republican who seeks to update existing laws and is working with the North Carolina’s Democratic attorney general, said Hauenschild.
“The internet doesn’t stop at state lines, which is why we need federal privacy rules that provide consistent protections for consumers,” said USTelecom CEO Jonathan Spalter: “By returning privacy oversight to a single, expert agency like the FTC, consumer privacy will be more effectively safeguarded.” The FCC didn’t comment.