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The Flake Resolution Unravels Progress in American Data Privacy for Inadequate Reasons

Posted By Chancellor Tseng, Mar 29, 2017

On March 7th, Sen. Jeff Flake (R-AZ) introduced a resolution to block Federal Communications Commission (FCC) Internet privacy rules instituted during the Obama administration. Specifically, the resolution would nullify current FCC requirements for Internet Service Providers (ISPs)—e.g., Comcast and Verizon—to obtain consumer consent before sharing private user information. The resolution would widely impact regulation of users’ sensitive data, ranging from user names and addresses to communication content, location, and Internet search history.

This resolution arrived after conservative organizations and telecommunication trade groups wrote a letter to the Senate Committee on Commerce, Science and Transportation asking Congress to invoke the Congressional Review Act (CRA) to stop these “innovation-inhibiting regulations.” Sen. Flake described the FCC rules as “unnecessary, confusing” and stifling for innovation. He further claimed that his resolution will neither “change or lessen existing consumer privacy protections,” but “empower[] consumers to make informed choices on if and how their data can be shared.”

In reality, Sen. Flake’s resolution would accomplish the exact opposite.  By stripping away these consent barriers, this resolution would increase data exposure. If passed, Consumers would be less able to make “informed choices” if they can no longer withhold consent for data sharing. Further, Sen. Flake and the industry trade groups have yet to proffer concrete evidence or credible studies detailing the extent of innovation loss engendered by the FCC’s rules.

There may indeed be one potential loss to innovation due to consent restrictions. These rules present obstacles for ISPs selling consumer data to third-party corporations. This in turn delays third-party processes and tailored services’ ability to innovate. However, in an age where data is so prevalent, this “loss of innovation” is too attenuated to justify abrogating consumer privacy and choice protections. Eliminating consent to promote corporate innovation is akin to eliminating the search warrant requirement to promote the government’s seizure of incriminating evidence. These checks and balances exist for a reason.

Given the vast amounts of intimate details contained in location and search history, data privacy is just as—if not more—important than home privacy. For instance, the startlingly accurate data can reveal which synagogue you worship at, trips to the psychiatrist, the gay nightclub you frequent, and other sensitive habits. Just as one has the right not to consent to a warrantless search of your house, one should also have the right not to consent to the deregulated sale of and access to this type of personal data.

Sen. Flake can pursue his goal to reduce restrictions to innovation without removing critical consumer privacy protections. His political party often espouses adherence to Framers’ Intent—strict construction—in the constitutional context. Yet Sen. Flake’s party inconsistently applies this doctrine when it comes to Internet policy. Sir Tim Berners-Lee founded the World Wide Web on important egalitarian principles: net neutrality, independence, and freedom from manipulation. Mozilla’s manifesto furthers these principles by recognizing that the Internet is (1) an integral part of modern life and (2) a global public resource that must remain open and accessible to all. Innovation derives from equal competition, not by passing legislation favoring the profits of large and influential corporations.

An ominous effect of the CRA is that it prevents an agency from passing any “substantially similar” regulations in the future. If Sen. Flake’s resolution passed, the FCC would be forbidden from regulating ISP privacy practices in a substantially similar manner—i.e., requiring data sharing consent. The ACLU has raised a troubling consideration: we do not yet know the capabilities of future technology. Using the CRA’s power places consumers in a helpless position without recourse from a muzzled FCC and limited Federal Trade Commission.

Sen. Flake’s resolution moves American Internet policy in the wrong direction. It sacrifices consumer privacy in an unequal exchange for corporate profitability. We cannot allow this proposed legislation to remove Obama’s FCC protections so quickly and permanently. Earlier this week, unfortunately, the Republican-controlled Senate and House just passed Sen. Flake’s resolution. It is now currently before the President to be signed into law. The White House has already indicated their approval and intent to do so. Once again, the lobbying efforts of powerfully rich conglomerates have succeeded in elevating their financial interests over consumer privacy rights.