Senate Passes Flake’s Legislation to Strike Down Disastrous FCC Privacy Rule

Last week, the United States Senate passed S.J. Res 34 sponsored by Senator Jeff Flake (R-AZ), which seeks to overturn the Federal Communications Commission’s (FCC) ill-advised Privacy Order it issued last fall on a straight party-line 3-2 vote.

At issue is who will be the regulator of online privacy and how will they regulate. 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 FTC’s 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 National Taxpayers Union (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. Passage of S.J. Res. 34 using the Congressional Review Act was a positive first step.

NTU is thankful for Sen. Flake’s crucial leadership in working to overturn the FCC’s power grab. The passage of S.J. Res. 34 is another example of Sen. Flake’s long history of leadership on behalf of limited government.

NTU urges the House of Representatives to quickly pass S.J. Res 34.