Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...
A Senate Democrat is fighting back against the GOP’s recent decision to kill off broadband privacy rules with draft legislation to give the Federal Trade Commission privacy and data security oversight of internet service providers.
The Managing Your Data Against Telecom Abuses (MY DATA) Act, announced April 14 by Sen. Richard Blumenthal (D-Conn.), would give the FTC jurisdiction to regulate ISPs and the “authority to establish safeguards for privacy and data security across the Internet.”
The draft bill would address corporate concerns over having two different regulatory standards by giving the FTC oversight of both ISPs and internet companies, according to a statement from Blumenthal.
The draft would also grant the FTC rulemaking authority, Blumenthal said in a Facebook post. The FTC has limited independent rulemaking power and has been granted such authority by individual statutes on a case-by-case basis, such as with the Children’s Online Privacy Protection Act and the Do Not Call Act.
Blumenthal didn’t release the text of the proposed legislation, and there is no schedule for when the text would be released, or when a bill might be introduced, a Blumenthal spokeswoman said.
Republicans are likely to draft their own version of a bill on FTC regulatory authority but will need Democratic support to bring it to a vote and secure passage in the Senate. Blumenthal is a respected voice on consumer protection matters, even though a final bill is likely to be advanced by a Republican, D. Reed Freeman, a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington and co-chair of the firm’s cybersecurity, privacy and communications practice, told Bloomberg BNA April 18.
There is Republican interest in ensuring the FTC has adequate ability to regulate ISPs before it gets that authority.
After Congress and President Donald Trump rescinded a Federal Communications Commission rule to require ISPs, such as Comcast Corp. and AT&T Inc., to get user consent before collecting and sharing their personal information, Republicans wrote to FCC Chairman Ajit Pai, urging his agency to oversee ISP regulation until changes to the FTC’s ability to oversee them could be made. The FCC rule was rescinded before it took effect.
Freeman told Bloomberg BNA that the FTC has been seeking jurisdiction and rulemaking authority over broadband service providers for some time. If Blumenthal’s draft, or another version, advances, it could clear the way for the FTC to hand out civil penalties in privacy and data security enforcement actions, he said.
Representatives for the FCC and FTC didn’t immediately respond to Bloomberg BNA’s email requests for comment.
As for the FCC rule, ISPs welcomed its death. They argued that it set higher privacy standards for them, under FCC regulation, than for FTC-regulated internet companies, such as Alphabet Inc.'s Google and Facebook Inc., that don’t require consumer permission before using their data. Moving their privacy and security regulation under the FTC would put them on a level playing field with internet companies, the ISPs said.
Freeman said an outcome beneficial to all parties will require compromise from federal regulators, Congress and ISP industries. But a recent U.S. District Court for the Northern District of New Jersey case highlights how complicated giving the FTC jurisdiction over ISP providers can be.
In that case, the FTC alleged that internet-connected TV maker Vizio collected consumer viewing data without their knowledge or consent. The parties Feb. 6 settled the claims for $2.2 million.
The case may show how the FTC would handle ISP oversight, because consumer internet data can be as equally sensitive as TV viewing data, Freeman said. If granted oversight and rulemaking authority over ISPs, the FTC could “write a trade regulation rule on privacy and data security that has an opt-in requirement,” he said.
If Congress can’t find enough agreement to pass a law on FTC regulatory authority, states may step up to fill the void with their own laws codifying broadband privacy rules, Bloomberg Intelligence Litigation Analyst Matthew Schettenhelm said.
Wisconsin and Minnesota have already enacted ISP privacy laws that require permission before disclosing subscriber information about web browsing history.
To contact the reporter on this story: Daniel R. Stoller in Washington at dStoller@bna.com
To contact the editor responsible for this story: Donald Aplin at email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)