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Representatives Should Vote to Overturn FCC Privacy Rule

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NTU urges all Representatives to vote “YES” on S.J. Res. 34, which would use the Congressional Review Act to overturn the Federal Communications Commission’s (FCC) Privacy Rule.

Last November, in the waning days of the Obama administration, the Federal Communications Commission (FCC) finalized its disastrous Broadband Privacy Order on a party line 3-2 vote. Thankfully Congress can fix the FCC’s rush to judgment by passing S.J. Res. 34.

At issue is who will be the regulator of online privacy and how will they regulate it. For nearly 20 years, the Federal Trade Commission (FTC) was the regulator of online privacy, but when the FCC issued its 2015 ruling reclassifying Internet Service Providers as “common carriers,” it set the stage for this battle. Last fall, the FCC, with its newfound power, asserted its right to regulate online privacy. 

The FCC’s Privacy Order is a dramatic departure from the Federal Trade Commission’s (FTC) established privacy rules, even though those rules have been harshly enforced. While the FTC’s standard of what data is held versus who holds it has appeal at the most basic level, the FTC's translation of that concept has often left a great deal to be desired. The FTC, like the FCC, has also been overreaching on privacy in the past, by hewing to “precautionary principles” so rigidly that companies in both development of products and delivery of services are hesitant to innovate out of fear of being shut down.

Going forward, Congress needs to keep a more watchful eye on both FTC and FCC, even as it leans toward fashioning data privacy boundaries that are properly balanced, and will likely focus on types rather than conduits of data. A good first step, however, would be for Congress to utilize its CRA power to overturn the Privacy Order. 

Roll call votes on S.J. Res. 34 will be included in our annual Rating of Congress and a “YES” vote will be considered the pro-taxpayer position.

If you have any questions, please contact NTU Government Affairs Manager Clark Packard at (703) 683-5700