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New battle lines drawn in ISP privacy debate

A recent bill in Congress is causing new battle lines to be drawn in the ongoing fight over internet privacy.

Speaking at a May 31 telecom policy conference, AT&T Inc. Senior Executive Vice President of External and Legislative Affairs Bob Quinn Jr. said he generally supports proposed legislation from Tennessee Republican Rep. Marsha Blackburn. The bill — dubbed the Balancing the Rights of Web Surfers Equally and Responsibly, or BROWSER, Act — establishes a new privacy regime that would apply to all players online, regardless of whether they provide broadband service, content or a social media platform.

In some respects, the bill adopts a similar framework to the one supported by the Federal Communications Commission's 2016 privacy order in that the bill would require companies to obtain opt-in consent from consumers before using or sharing sensitive customer information. Moreover, like the FCC order, Blackburn's bill defines "sensitive information" to include web browsing history and app usage.

Unlike the FCC order, however, the BROWSER Act would not be limited to just internet service providers.

Blackburn's bill comes after Congress overturned the FCC privacy order through the Congressional Review Act, or CRA, earlier this year. Blackburn had been a fierce opponent of the FCC order, saying it represented "a blatant power grab" by the commission. Additionally, she noted the FCC order "focused on only one part of the Internet eco-system and ignored edge provider services that collect as much, if not more data, than ISPs."

By contrast, Blackburn said her bill "creates a level and fair privacy playing field by bringing all entities that collect and sell the personal data of individuals under the same rules." These rules, she noted, would be enforced by a single agency: the Federal Trade Commission — not the FCC.

SNL Image
Billboard campaign targeting lawmakers over privacy
Source: Fight for the Future

Blackburn's opposition to the FCC order and her support of the CRA to overturn it attracted the ire of several public advocacy groups, including Fight for the Future. In response to the congressional maneuver, Fight for the Future organized a billboard campaign targeting lawmakers who voted for the CRA, including Blackburn, who serves as chairman of the House Communications and Technology Subcommittee.

Quinn said these billboard ads were part of a "disinformation campaign," but noted they may have contributed to the introduction of Blackburn's bill.

Like Blackburn, AT&T had fiercely opposed the FCC privacy order. But the "parity aspect" of Blackburn's bill, according to Quinn, is the reason the company can support her proposed legislation.

"Our position in the FCC docket was you can't put us under a different set of rules on privacy than the rest of the industry," said Quinn at non-partisan, free market-oriented think tank Free State Foundation's May 31 event.

He noted rule parity is particularly important as AT&T increasingly competes with tech titans such as Apple Inc. and Google Inc., as well as over-the-top services.

Speaking at the same event, FCC Chairman Ajit Pai expressed a similar sentiment, saying that at the end of the day, what really matters is that consumers have a uniform expectation of privacy.

"It shouldn't matter and doesn't matter whether sensitive information is handled by one type of company or another — they want the information to be protected in a consistent way," Pai said, adding that he would let Congress decide what the final rules should be.

Comcast Corp. Senior Executive Vice President and Chief Diversity Officer David Cohen said he generally agrees that Blackburn's bill is a good thing, though he believes there is still a discussion to be had over whether all web browsing history should be deemed sensitive information.

"We will see how it plays out but the ultimate discussion of whether all web browsing history belongs in the sensitive information category … will be something there could be a discussion about during consideration of her bill," he said.

Notably, a number of internet groups have come out in opposition to the bill. Noah Theran, spokesman for the trade group and lobbying organization the Internet Association, said in a May 23 statement that the bill "has the potential to upend the consumer experience online and stifle innovation."

The public interest group, Electronic Privacy Information Center, has also objected to the bill, saying it "lacks a private right of action or a remedy for violations" and "would overwrite stronger state privacy laws that protect consumers."

Blackburn's bill has been referred to the House Committee on Energy and Commerce.