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 utilizing the Congressional Review Act (CRA).
The CRA is a vital tool that Congress has to overturn ill-advised and overreaching administrative regulations coming from the executive branch or independent agencies. National Taxpayers Union (NTU) has supported efforts in Congress to utilize its CRA authority over a myriad of administrative rulemakings from the executive branch, from tax administration to energy, from labor to telecommunications. Likewise, NTU has been critical of agency efforts to skirt accountability, for example by loosely defining “major rulemakings.”
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. FTC, like 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. This is a major concern that NTU has documented in a recent paper.
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.
NTU will continue to monitor privacy policies emanating from Washington policymakers and explain any potential upsides and pitfalls associated with them.