Congress Kills ISP Privacy Regulations – It’s Time for Open Access

There’s been a lot of buzz about last week’s Senate vote to block FCC regulations that protect consumer privacy regarding broadband Internet access – and the House just voted to block the rules as well. The vote will have implications for both consumer privacy and open Internet principles – here’s a look at what happened.

What Happened?

The FCC passed new privacy regulations applicable to broadband providers (ISPs) in 2016. These regulations required that ISPs get consumers to explicitly “opt-in” before providers could share and sell personal information (IE  browser history, location, financial details, users’ communication content) to advertisers and other third parties. The FCC rules were supposed to go into effect in early 2017, but the FCC stayed the rules on March 3, so they did not go into effect.

Congress is separately considering whether to reject the privacy rules under a statute called the Congressional Review Act. The Senate voted 50-48 to disapprove them on March 23, 2017. The House voted on the measure on March 28, and also voted215-205 to disapprove the rules. It now moves to the President for signing. If the President signs, the FCC will be permanently precluded from adopting a “substantially similar” rules in the future.

Press reports indicate that the FCC also plans to start the process of repealing the underlying 2015 “net neutrality” rule in the near future.

The Arguments

Broadband providers have stridently opposed the overall net neutrality rules and the more specific broadband privacy rules. The new leadership in the FCC now seems to support the providers. The main argument is that different and fewer rules govern large web-based companies that also collect and sell user information (for example Facebook and Google) and the difference in treatment is not warranted. The opponents also claim the rules are an unfair burden to ISPs that could confuse consumers and stifle innovation.

Proponents argue that net neutrality rules and related privacy framework were necessary, a positive change and a “win” for consumers. The rules require far more disclosures by broadband providers about their services, give some protection against abusive acts and allow users to better control the collection, retention and dissemination of personally identifiable information by their ISP.

What Happens Next?

The bill will now advance to the President for signature. If the rules are in fact blocked, the FCC will have to devise an entirely new framework governing ISPs if it wants to protect consumer privacy. It’s likely the rules will be general and probably will not involve a requirement of express uses “opt-in” to monitoring and sharing. If the choice exists at all, users will likely have to affirmatively “opt-out.”

What It Means for Broadband Providers

These votes are good news for ISPs and broadband providers (unsurprisingly, as they lobbied against the rules). They mean less regulation, and preserves the ISPs’ ability to sell and profit from user information. They also preserve the existing duopoly situation that exists among ISPs, maintaining provider control over the market.

What It Means for Consumers

It’s important to note that although the rules are being blocked, they never actually went into place. So while this change may be a precursor for additional privacy changes, at the present time no consumer protections have actually been lost. Consumers are still subject to the same (albeit invasive) ISP data selling and sharing practices that were already occurring.

While it’s concerning that consumers will to have little control or awareness over what’s happening to their data, what’s even more concerning and is not being emphasized in the news is that privacy protections AT LARGE are likely to be rewritten following this vote. As mentioned above, if the rules are killed the FCC cannot introduce something similar – meaning a new approach to consumer privacy may be on the horizon. Read more about consumer privacy implications in our detailed blog post.

The Big Picture: The Conversation Must Change

This, however, is not just about privacy – as important as that is. There is a larger and equally important issue. The 2015 Open Internet (“net neutrality”) Order was in fact a compromise, and ultimately an admission of failure. It’s true that the FCC privacy regulations were beneficial, but they were only necessary because of the existing net neutrality framework. None of it would have been necessary if the FCC had merely retained prior rules in place since the 1970s that required open, interoperable networks and open access to the local monopolies’ basic bottleneck infrastructure. These rules gave us the Internet to begin with, but the FCC began repealing them in the early 2000s after the local monopolies threatened to not build broadband networks unless the FCC did so. The result was predictable. When the networks were closed the thousands of independent Internet Service Providers (most of which had very protective privacy policies) that thrived in the mid- to late 1990s went out of business. The big companies still slow-rolled deployment, still ration and still charge high prices. The monopolies are now further expanding their control and reach by surveilling users and selling users’ private information to other large companies and the government.

The Answer: Open Access

At Golden Frog we have always valued choice, transparency and fully competitive markets.

The conversation needs to be changed. Everything regarding Internet access and consumer privacy must be revisited. It is time to reassess whether the failed “net neutrality” rules were the right answer since they basically represented final acceptance of monopoly markets with half-hearted regulatory protection against the monopolists that could be taken away on short notice. Why are we still fighting for a weak compromise? Golden Frog supported the FCC privacy regulations (along with many others who value privacy and choice) because they granted consumers some additional control under the existing framework, but Golden Frog has always contended that the net neutrality framework was misguided because it all depends on regulators to constrain powerful interests. We need to reevaluate what we are fighting for. The right answer is a return to fully open, interoperable basic networks, and consumer choice in Internet access.

In the current market most consumers little or no choice in their provider, and even where two providers exist they have basically the same policies. Open Access would allow for lots of Internet providers, rather than the duopoly-type situation that exists today. This would prevent broadband providers from controlling consumer privacy and data because consumers could choose providers that are more privacy-friendly and decide how they want their information to be handled. As we are revisiting the debate at large, we believe it’s time for a renewed call for open access– it’s time to take the conversation outside of the FCC’s privacy regulations and revisit our approach as a whole.

What Can You Do?

• It’s time to start the conversation about the real problem – closed monopoly networks and the lack of competition for broadband.
• Take steps to protect your privacy and data online, regardless of the regulations in place – Get VyprVPN Now!
• Learn More! View our blog post to learn more about how this legislation impacts your privacy, or read our Vision Paper.