Trump’s Repeal of Broadband Internet Privacy Rules

On April 3rd, 2017, President Trump signed a repeal of broadband internet privacy rules put in place during Obama’s last year in office. The repeal is considered a major setback for privacy advocates and a victory for internet service providers (ISPs) such as Comcast, Centurylink, and Verizon. The rules would have placed limitations on how ISPs could gather and distribute user’s sensitive data. The FCC outlined exactly what sensitive information is and includes: Precise Geo-location,Web browsing history, Social Security Numbers, The content of communications, Children’s information, Financial information. Activities conducted on the web in the privacy of one’s own home is now available for purchase. Large telecom companies like AT&T argued that getting consumers’ permission to use their personal data would create significant harm to the ISPs (Brodkin). The Trump administration agreed. ISP’s have monopolies in most markets leaving consumers little options if they disagree with the ISP’s privacy policy. If the FCC is unwilling to address ISPs unilateral infringement on it’s citizen personal privacy then States should enact legislation allowing consumers to pilot how personal information is used and what is bought and sold by third parties.

Legislators in Minnesota and Washington have taken the lead
by introducing legislation ensuring that ISPs acquire consent from customers
before gathering and selling sensitive data. “Your internet access provider shouldn’t be able to sell
your private information like your browsing history to the highest bidder,”
said state Rep. Drew Hansen of  the
Washington State House. “If Congress isn’t willing to stop that from happening,
then we in Washington state are absolutely going to act to protect our privacy”
(Qtd in Orenstein).

Before this legislation reaching Trump’s desk, a temporary
stay had already been placed on implementing the rules by, Ajit Pai, the new
head of the Federal Communications Commission. 
This stay and subsequent repeal of the Obama-era privacy laws were the
culmination of years of disagreement and lobbying over how ISPs should be
classified and regulated.

Major points of contention exist regarding which
administrative agency should have oversight over ISPs and how they should be
defined under federal law. Unlike websites like Facebook and Google, which are
regulated by the Federal Trade Commission (FTC), ISPs are considered common
carriers and are governed by the Federal Communications Commission (FCC).  The FCC, under Obama, reclassified ISPs as
“common carriers” in 2015, thus treating them like other utilities. The Obama
administration justified this reclassification by arguing that ISPs are the
“on-ramp” to the Internet (FCC Fact Sheet). Not only do ISPs have access to
things that consumers may voluntarily share over the web, but they have access
to other information, notably browsing history and patterns, in which consumers
may have a reasonable expectation of privacy. The FCC rules were designed to
protect sensitive customer information from dissemination to third parties
without the user’s consent.

The FCC reclassified ISPs to enforce net neutrality rules,
which require ISPs to act as neutral gateways to the internet (Morrison). This
classification also recognizes the importance of ISPs as providers of public
goods, and therefore subject to regulation by the FCC.  The FCC fact sheet regarding broadband
privacy rules states that the FCC has had decades of experience in protecting
consumers’ privacy rights.

In contrast, the FTC is primarily concerned with regulating
“unfair or deceptive acts or practices” (Gellman).  They are not overly concerned with privacy
rights.  The FTC is regarded as a weaker
agency in terms of enforcement than the FCC in general, due to its limited
jurisdiction and the smaller scope of its regulatory mandate (Gellman). The
ISPs would like to be under the purview of the FTC, rather than the FCC. The
new Trump-appointed heads of these agencies agree.

Ajit Pai, Chairman of the FCC, and Maureen Ohlhausen, acting Chair of the FTC, issued a joint statement in early March indicating that the agencies wanted to create “a comprehensive and consistent framework” that applies both to ISPs and websites (Brodkin). Further, the two helpfully noted that different privacy rules for ISPs and websites would confuse consumers. The joint statement continued, “Americans care about the overall privacy of their information when they use the Internet, and they shouldn’t have to be lawyers or engineers to figure out if their information is protected differently depending on which part of the Internet holds it” (Gellman).

This temporary stay of Obama’s privacy regulations was issued on March 1, 2017.  It was made permanent by Trump’s signing of repeal of broadband privacy rules on April 3, 2017, and put a halt to the Obama administration’s attempt to protect consumers’ privacy.

In October 2016, the FCC promulgated rules that would
require ISPs to obtain users’ permission to use and share their personal
information. Before the establishment of this regulation, there were no
guidelines in place regarding how ISPs could take advantage of consumer
information, including children’s consumer information. The FCC’s rules,
according to the agency, were not intended to prevent ISPs from using consumer
information, but rather, to give users a voice in how the information was used
in marketing and whether or not it was sold to third parties. However, the
Trump administration saw the rules differently.

The newly appointed members of the FCC under Trump found
that the Obama-era rules would create significant compliance costs for the
ISPs, although no concrete evidence was provided by the committee to support
this contention. USTelcom, a lobbying group representing AT&T, Verizon, and
other large telecoms, agreed and stated that they looked forward to the
government developing “a uniform, consumer-focused approach to
privacy” (Brodkin). The ISPs main argument was that they should not be
treated differently from websites like Facebook on safeguarding users’ privacy.
So many consumers were concerned with this repeal that Gerard Lewis, the chief
privacy officer of Comcast stated, “We do not sell our broadband customers’
individual web browsing history. We did not do it before the FCC’s rules were
adopted, and we have no plans to do so.”

However, some argue that now that the FCC rules have been
revoked, no agency is regulating the ISPs, and the ISPs are subject to fewer
regulations than websites (Brodkin). The FCC is not likely to promulgate new
rules soon, as Chairman Pai has indicated that he favors a hands-off approach
towards regulating ISPs and telecoms. 

Although the Trump administration has argued that the
revocation of the privacy rules will not have a large or detrimental impact on
consumers, privacy advocates disagree. 
Mostly the rules would have allowed consumers to “opt-in” to any
marketing, data mining, or data sharing policies of the ISP.  Revocation of these rules preserves the
status quo, which instead requires consumers to affirmatively “opt-out” of any
data collection by the ISP. This puts the onus of keeping one’s private
information private on the consumer, rather than on the entity that wishes to
profit from this information.

The Trump administration is just maintaining the status quo.
Critics of the regulations felt that they created unnecessary roadblocks to the
unfettered development of the internet, and placed unfair burdens on ISPs.  However, supporters of the rules note that
the web is a public good and the government has a right to protect its citizens
when they are using this public good. Further, they argue that the regulations
do not harm the ISPs and do not prevent them from collecting any data they
wish, they must simply get their consumers’ permission first. 

Works Cited

• Orenstein, Walker,“Prefer Privacy as You Surf the Web? Bills Want Providers to Ask Before Selling Data.” The New Tribune, 4 April 2017. http://www.thenewstribune.com/news /politics-government/article142571264.html
• United States, Federal Communications Commission, Fact Sheet: The FCC Adopts Order to Give Broadband Consumers Increased Choice Over Their Personal Information, March 2016, https://apps.fcc.gov/edocs_public/attachmatch/DOC-341938A1.pdf