ISP Privacy Supporters Fight On After California Defeat, but Foes See State Fever Breaking

ISP privacy rule supporters aren’t daunted after states failed to pass bills to counter President Donald Trump’s approval of congressional repeal of FCC rules, they told us. Opponents said legislatures were wise not to act. Privacy advocates and state ISP privacy bill authors plan to continue the fight into 2018. Supporters plan to ramp up outreach efforts to state lawmakers to combat ISPs and edge providers they claim spread misleading information.

“It’s only a matter of time” before a bill passes, said Justin Brookman, Consumers Union director-consumer privacy and technology policy. Bills came out late in legislative sessions and there was much uncertainty about proposed rules’ effects, he said. Several states came close this year, but it often takes more than one legislative cycle to pass complex policy, he said. When one state acts, others will follow quickly, he predicted.

Desire faded for state ISP rules, countered Doug Brake, telecom policy senior analyst at the Information Technology and Innovation Foundation. “The misplaced hysteria that followed the April resolution of disapproval was the impetus for these bills,” he said. “That fever broke a while ago, so the political momentum has definitely slowed.” When state legislators learn about “the benefits of a uniform, FTC-led approach, these bills are less and less likely to progress,” he said.

Defeat in California was “a step back, but the conditions ... aren’t irreparable,” said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon. Lawmakers didn’t vote against the bill; rather, they didn’t vote, Falcon said. The bill will be back, he said. The bill’s author, Assemblymember Ed Chau (D), vowed Monday to continue pushing for ISP privacy rules when the legislature returns in January (see 1709180032). Oregon, Washington and other state legislatures that ran out of time to vote on ISP privacy bills are likely to revive efforts, Falcon said.

“It is a big deal that California did not pass the bill,” argued American Legislative Exchange Council’s Jonathon Hauenschild, who supported Trump signing the CRA resolution that repealed the FCC broadband privacy rule. “The inaction illustrates how complex the topic is.” Some states may revive bills in 2018, but other broadband issues are likely to take priority, he said. The FCC net neutrality rulemaking also “will take any steam from the state ISP privacy concept and shift the privacy discussion back to the FTC, where it resided prior to” then-FCC Chairman Tom Wheeler’s 2015 net neutrality order, he said.

The prospect of many differing state laws may have made lawmakers hesitate, said Phoenix Center President Lawrence Spiwak. “The internet is clearly an interstate service, so this notion of having a patchwork of state privacy statutes makes no sense whatsoever” and could be challenged in court, he said. Privacy is a developing issue and one state law could interfere with efforts to address privacy nationally, said Spiwak.

Next Up

Minnesota Rep. Paul Thissen (D) told us he will revive his ISP privacy bill that failed to pass this year. “Minnesotans are outraged that a bill that initially passed with 200 yes votes and 1 no vote in the legislature was defeated at the last minute by telecom special interests,” he said. “We are working now to build outside the Capitol public support that is probably necessary to carry the legislation over the finish line next spring.” Thissen plans to add language that would have the state Commerce Department “require companies who profit from the sale or use of private data to reimburse the customers providing the data for the value of that data.”

Wisconsin Sen. Chris Larson (D) is asking Republicans to support his ISP privacy proposal, a spokesman said. The rules were attached to a broadband grants bill but got separated when the broadband grants were added instead to a budget bill (see 1705310033). Larson tried adding the ISP rules to the budget bill, but Republicans voted against it. ISP privacy is now part of a stand-alone bill that remains viable until the legislative session ends in May, the Larson spokesman said.

Privacy advocates are watching an ISP privacy bill in the District of Columbia, Brookman said. Consumers Union and other groups sought a hearing on the bill in a letter earlier this week (see 1709190026). D.C. Councilmember Brandon Todd (D), looks forward to moving the bill through the Business and Economic Development Committee, his spokesman said.

Fighting Confusion

Privacy advocates plan to teach state legislators what ISP privacy rules do and don't do, Falcon said. “They need to be more comfortable with the substance of the issues” so they’re better able to separate fact from fiction, the EFF official said.

California bill opponents cautioned lawmakers about unintended consequences. ISPs and internet edge companies sent a Sept. 14 letter to assemblymembers saying the bill would make consumers vulnerable to pop-up ads and hackers (see 1709140040). A TechNet commentary and an anonymous website included similar claims.

Those claims weren’t true but confused legislators, Falcon said. Opponents argued privately that the privacy legislation would give a private right to action, impede law enforcement and hurt efforts to fight terrorism online, he said. “All of these things added up very quickly,” and legislators didn’t have time to fact-check all of the oppositions’ claims before the eleventh-hour Friday vote, he said.

The privacy bill would have led “to consumer confusion, diminished the Internet experience, and resulted in a hodgepodge of state-by-state regulations,” an AT&T spokesman emailed. “The Legislature was wise to delay action." The bill shouldn’t be revived, emailed California Cable & Telecommunications Association President Carolyn McIntyre. “The Internet is an interstate service. Any rules related to the Internet should be at the federal level.” AT&T and CCTA earlier argued the bill didn’t get enough policy vetting since it never got a hearing (see 1709070002 and 1709060053).

Falcon asked why the Internet Association lobbied against ISP privacy rules that didn’t cover IA edge-provider members including Google and Facebook. The association’s “insertion into the misleading arguments gave [bill opponents] more legitimacy,” Falcon said. Brookman and Spiwak said the group, which declined to comment, may have feared passing an ISP privacy bill could lead to more privacy restrictions later covering edge providers.