Coalition urges Congress to rescind FCC Broadband Privacy Order - American Commitment

January 26, 2017
The Honorable Paul RyanSpeakerU.S. House of RepresentativesWashington, DC 20515
The Honorable Mitch McConnellMajority LeaderU.S. SenateWashington, DC 20510
The Honorable Nancy Pelosi Democratic LeaderU.S. House of RepresentativesWashington, DC 20515
The Honorable Chuck Schumer Democratic LeaderU.S. SenateWashington, DC 20510
Dear Speaker Ryan, Majority Leader McConnell, Leader Pelosi and Leader Schumer:
We urge you to usethe authority provided in the Congressional Review Act to rescind the Federal Communications Commission’sBroadband Privacy Order.Congress is fully justified in rescinding these rules both because the Order lacks proper legal grounding and because of the need to ensure realconsumer privacy across contexts of user experience.The FCC’s approach is inconsistent with that of the Federal Trade Commission for nearly two decades, and will likely render harm unto consumers.The FTC focuses onwhatdata are held, the level of data sensitivity, and how consumers are affected if the data are misused.This outcomes-based approach takes consumers’ preferences into account while preventing actions that harm consumers.The FTC’s approach rests on well-established standards of Unfairness (preventing substantial consumer injury) and Deception (enforcing material promises). Consumers generally agree on what constitutes financial and physical injury. Consumers deem data that could lead to these types of injuries more sensitive, and expect higher security for these data.The sensitivity of other “private” information is, as the FTC rightly recognizes, often subjective, depending on its use. Some people might choose to post everything about themselves online — details that others mightfindinvasive or embarrassingif made public — while others chose not to join social networks. Some might find value in an application using data about their geolocation in a particular way, while others decline participation because they consider the benefit of the service outweighed by its privacy cost.None of these approaches to privacy is incorrect. Each is a personal decision about tradeoffs. Taking varying consumer preferences into account, the FTC’s standards functioned reasonably well, requiring opt-out in most instances and opt-in only for particularly sensitive kinds of data.The FCC approach focuses onwhoholds the data, rather thanwhat— and how sensitive — the data are. This hinders services that consumers want while failing to protectsensitivedata across contexts.The FCC’squestionable ability to regulate privacy standards, and its narrow view on what constitutes privacy protection,make its rules counterproductive to actual consumer privacy protections.In contrast, the FTC’s approach to privacy does a better job of balancing protection of consumers’ privacy online with economic incentives to innovate in consumer products and services.There are many reasons for Congress to negate these rules:The legality of the Open Internet Order, which these rules are based on, is questionable;the FCC’s expandedinterpretationof customer proprietary network information from section 222 is incorrect, as it applies specifically to voice services; and sections 201, 202, 303(b), 316 and 705 of the Communications Act also do not give the FCC the authority to enterrules of this nature.Rescinding the Privacy Order would promote both innovation and effective, consistent privacy protectionsin over-the-top, application, wireless and wireline markets. It would also send a clear signal that the FCC has lost its way in interpreting the statute Congress gave it. Doing so would not create a gap in privacy protection because the FCC would retain the ability to police privacy practices of broadband companies on a case-by-case basis.If Congress fails to use the CRA in such a clear-cut case of agency overreach, the statute will fail in its original goal: encouraging regulatory agencies to respect the bounds of Congressional authority.Sincerely,Americans for Tax ReformDigital LibertyAmerican CommitmentAmerican Consumer InstituteCaesar Rodeny InstituteCenter for Freedom & ProsperityCenter for Individual FreedomCompetitive Enterprise InstituteFreedomWorksFrontiers of FreedomInternational Center for Law & EconomicsInstitute for Policy InnovationThe Jeffersonian ProjectJohn Locke FoundationLess GovernmentThe Main Heritage Policy CenterNetCompetitionOklahoma Council of Public AffairsSmall Business & Entrepreneurship CouncilTaxpayers Protection AllianceTechFreedom
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