The Sky Is Clearing, Not Falling, on Internet Privacy
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The hysteria and hyperbole about online privacy needs to stop following House passage of S. J. Res. 34, which invoked the Congressional Review Act (CRA) to rescind the Federal Communications Commission’s Privacy Order.
The legislation simply begins to restore the status quo for privacy rules that had been in place for decades prior to the adoption of the Open Internet Order (OIO) by the FCC on February 26, 2015. The OIO subjected internet service providers (ISPs) to the common carrier rules adopted in 1934 for telephone companies, including privacy regulations. Rather than creating rules that were compatible with or the same as the existing FTC rules, the FCC voted on October 27, 2016, to set up its own regulations for privacy that applied solely to ISPs. Other aspects of the internet, including search engines, email applications, social media sites, online shopping vendors, health providers, and online banking sites, all of which contain and retain much more personal identifying information about consumers using the internet than the consumer’s ISP, continued to remain under the jurisdiction of the FTC.
Claims from supporters of the OIO and the FCC rules that ISPs will now “be free to sell your personal information to the highest bidder” are ridiculous. Anyone who is concerned about their personal information can opt-out of information sharing.
Second, while the FCC Privacy rules had not gone into effect when Congress rescinded them, the FCC Enforcement Bureau already had temporary privacy protections in place. On May 20, 2015, as an interim step until the FCC could develop a permanent set of rules, the agency issued an Enforcement Advisory, which provides guidance to ISPs for taking reasonable, good faith efforts to secure consumer privacy. Acting under this Advisory, the agency will provide informal and formal guidance to internet service providers to help ensure that consumer privacy is protected. Meanwhile, the FCC Chairman Ajit Pai and FTC Acting Chairman Maureen Ohlhausen stated they plan to work together to develop to create a comprehensive and consistent framework to protect the online privacy of American consumers.
So, Chicken Little didn’t get hit by a honking big piece of the sky, and everyone’s personal information is as private as it was before the House and Senate passed this legislation and sent it to the President for signature. Once the President signs the CRA, the FCC will be able to go back to the drawing board and come up with a less confusing, more harmonized set of privacy rules for common carriers that will give the American public the peace of mind that their privacy is protected.