Among the many problems with Sen. Ed Markey’s (D-Mass.) Congressional Review Act (CRA) resolution of disapproval of the Restoring Internet Freedom Order (RIFO) is the gaping hole in privacy protection that will occur if the legislation is enacted into law.  It is the one issue that supporters do not wish to be brought up or discussed publicly in their zeal to overturn the RIFO.

Most Americans do not know which federal agency protects their online privacy for different actions.  Companies like Apple, Facebook, Google, and Twitter have always been subject to the Federal Trade Commission’s (FTC) privacy enforcement regime.  That same privacy protection covered internet service providers prior to the 2015 Obama-era Open Internet Order (OIO), also known as the net neutrality order.  The OIO bifurcated privacy jurisdiction.

As Free State Foundation President Randolph May noted in his May 9, 2018 Washington Examiner op-ed, “the 2015 Obama-era regulations had the effect of eliminating the Federal Trade Commission’s jurisdiction over broadband ISP privacy practices.  This is because the FTC lacks authority to regulate telecommunications carriers subject to the Federal Communication Commission’s (FCC) jurisdiction.” 

The FTC also cannot regulate other common carriers, such as public airlines, railroads, bus lines, taxicab companies, phone companies, cruise ships, motor carriers, and other freight companies.  The telephone industry is classified as a common carrier under Title II of the Communications Act of 1934; the OIO made ISPs common carriers for the first time by subjecting them to that law.

Sen. Markey’s CRA would strip away ISP consumer privacy protection from the FTC, but it would not restore the jurisdiction of the FCC over ISP privacy.  Under the OIO, the FCC was developing privacy regulations, which were not finalized prior to the 2016 elections.  Congress overturned the proposed regulations under a CRA that President Trump signed into law on April 4, 2017.  The RIFO both reestablished the Title I information service classification for ISPs and restored the FTC’s privacy jurisdiction over ISPs.

In addition to the void in privacy jurisdiction, proponents of the CRA revealed what RIFO supporters had long suspected:  net neutrality is simply a means by which the government will control the internet. 

Even though former FCC Chairman Tom Wheeler noted that the agency would “forebear” from Title II mandates, including rate regulation, the true intent of the 2015 Obama-era rules was finally revealed on the Senate floor by one of the CRA’s biggest proponents Senate Minority Leader Charles Schumer (D-N.Y.).  He suggested that the internet is a public utility, and rate regulation should be imposed upon ISPs.

He proved that net neutrality is a sham to insert the government into the most vibrant sector of the nation’s economy, the CRA can make that happen.  ISPs had reduced their planned capital investments in new infrastructure following the adoption of the OIO, and that was without rate regulation.  When the government determines how much a company can charge for any product or service, there is very little incentive to make new investments.

The OIO broke the internet by superseding nearly 20 years of light touch regulation that had allowed innovation to flourish.  The RIFO repairs the damage done.  Congress should be considering legislation to fix this matter permanently so that the rules apply equally across the entire internet ecosystem, rather than playing politics with a dangerous CRA and disrupting consumer privacy.