If the House of Representatives approves its version of SJ 34, which passed the Senate last Thursday, the privacy of Internet users could be jeopardized. The bill would repeal safeguards that prohibit Internet service providers (ISPs) from sharing data, such as e-mails and web history, with third parties without user consent. It would also do away with transparency requirements, which mandate that ISPs provide easily accessible privacy notices to customers and advanced notice prior to changes.
Under Section 222 of the Communications Act of 1933, similar restrictions already exist for telecommunications companies. These new guidelines, which went into effect on February 2, 2017, simply updated the wording to apply to digital communications. An FCC memorandum released in December 2016 argued that the new rules would “provide harmonized privacy protections for voice and broadband customers,” while ensuring customers have “the tools they need to ensure they make informed choices about the use and sharing of their confidential information by their broadband providers.” It also stressed the “fundamental importance of transparency” as the impetus for requiring carriers “to provide privacy notices that clearly and accurately inform customers about what confidential information the carriers collect, how they use it, under what circumstances they share it, and the categories of entities with which they will share it.”
The transparency requirement is one of three central tenants of the 2015 Open Internet Order that prohibits ISPs from blocking access to legal content and establishing “internet fast lanes” that grant preferential treatment to certain services. The 2015 OIO explicitly classified ISPs as telecommunication services, owing to a US Circuit Court of Appeals decision from 2014 that required the FCC to vacate the anti-discrimination and blocking provisions on the grounds that the internet was classified as an “information service” as opposed to a “telecommunications service.”
Civil liberties and digital privacy groups harshly criticized the Senate vote. In a press release, Neema Singh Giuliani, who serves as legal counsel for the ACLU, lambasted the Senate for voting to “silence the privacy rights of Americans in the interest of protecting the profits of major internet companies including Comcast (CMCSA), AT&T and Verizon.” She urged congressional representatives to “stop this resolution from moving forward and stand up for our privacy rights.” Kate Tummarello of the Electronic Freedom Foundation argued that if the resolution is approved by the House and signed into law by President Donald Trump, it will represent a “crushing loss for online privacy.”
The bill is one of five Congressional Review Act provisions currently under consideration by the House of Representatives. The CRA is a tool that allows Congress to overturn presidential executive orders and prevent them from ever being reissued. Prior to 2017, it was only used once. In the current session of Congress, Republicans have used it to pursue an aggressive deregulatory agenda, passing resolutions that have overturned numerous environmental and labor regulations. Tummarello noted that for online privacy supporters this added an extra urgency. She warned that in the event of its successful passage it would “not only roll back the FCC’s rules but also prevent the FCC from writing similar rules in the future.”