It’s been two weeks since the United States House of Representatives joined the Senate and passed a bill that “undid” the FCC privacy rules that were voted in during the Obama administration; at least that’s what we all heard for the weeks prior to the vote and immediately after. I’ve been kicking around what response to this bill was appropriate – is it outrage? If so, who deserves the wrath? Congress? The new FCC Chairman? The FTC Chairwoman? The Congressional Subcommittee on Communications and Technology? The previous administration? The Internet Service Providers? Really, when it came down to it there wasn’t a place for the rage to go because how we got where we are makes perfect sense when you step back and look at how we got here.
Wheeler-in’ and Dealin’
Under the previous administration, FCC Chairman Wheeler abused the 3-2 advantage that the Democrats had at the FCC to force through regulations that were more than a little less than bipartisan. This includes both the Net Neutrality/Open Internet Rules as well as the Privacy rules in question above. The Republicans on the commission (Ajit Pai and Mike O’Rielly) were staunchly against just about anything that was put forth that would increase the burden on the ISPs, consistently taking the stance that the commission was overreaching its power. This was most blatant when the Open Internet Rules were up for a vote in February 2015.
At that point in time the FCC was attempting to reclassify ISPs from being an information service, as they had been designated by Congress in the 1990s, to a telecommunications service. The Republican stance that there was no need for this reclassification wasn’t out of line for their party views. Pai and O’Rielly both made statements that had the general tone of, “if it ain’t broke, don’t fix it.” It doesn’t matter whether you think that this opinion was right or wrong because these were two men that were selected to vote on these rules and the public was given the opportunity to make comments for or against; and the public did – in force.
When Wheeler announced that the FCC was putting together new privacy regulations for ISPs that were going to be required due to the ISPs being reclassified as a telecommunications service it was highly controversial. One reason for the controversy is the FTC has been the regulatory body that was overseeing the ISPs in the past, but with the reclassification making the ISPs a telecommunications service it meant that the FCC became the regulatory body with jurisdiction to provide oversight. Pai and O’Rielly both believed that this was again an overreach on the part of Wheeler and the Obama administration and that there was no reason for the FCC to oversee ISPs. Pai made statements that talked about the FCC fixing problems that didn’t exist while not emphasizing attention on the issue of ensuring that broadband was provided to all – particularly rural citizens.
The privacy rules were approved in another 3-2 party line vote by the FCC in Fall of 2016.
The New Regime
Given the fact that the last several years at the FCC have been extremely contentious between the two political parties with voting commissioners, it would come as no surprise to anyone that the Republicans, who currently enjoy a 2-1 advantage as President Trump has yet to nominate two commissioners to fill the empty seats, would take the exact same actions as their Democrat counterparts to force through their own agenda.
In the first two months, the newly appointed Chairman Pai has made some big strides. He pushed forward an agenda of transparency, giving the public more insight as to what the issues up for votes inside the FCC that would create or dismantle rules and regulations were prior to the vote instead of after. Pai also put the Privacy Rules that were passed in November back on the block and with a party line vote was able to approve a measure that the rules would not be enforced.
Pai is now turning his sights on the Open Internet (Net Neutrality) Rules, which he believed were a mistake. His goal is to repeal them and instead put in place a system where the ISPs provide language in their user agreements that state they will provide information and traffic to the users in the best way possible, but the ISPs will get to decide what that way will be and there is nothing stating that each ISPs solution would be equal. Effectively, Pai’s solution is to let the market decide. If an ISP decides that it wants to slow traffic from certain websites, it should have the ability to do so and if the market doesn’t like it then they will lose customers.
You can see me editorialize the Net Neutrality rules several times over here, but there are many flaws with the plan Pai wants to put in place from the standpoint of those looking for equal treatment of data and equal access to all forms of information and it fails to address how an ISP will handle being both a content provider and a pathway for accessing competitive content.
Congress Steps into The Fray
After the Open Internet Rules were approved by the FCC and put into place, there were legal challenges – 9 specifically – that went to the Courts and were all struck down. During that same period, members of Congress stepped in to add their contribution to the fight by trying to introduce and pass bills that would create regulations that prevented the FCC from reclassifying ISPs as telecommunications services as well as just outright trying to overturn the rules that had been passed through new laws.
One of the leading members of Congress pushing these bills forward was Congresswoman Marsha Blackburn. All the bills that were introduced failed to reach the floor of Congress for a vote. However, these bills were all making their way through committees and the rest of Congress when there was a large sense of turmoil over what the next presidential administration would bring to the table.
It was then that the 2016 election and subsequent fallout occurred and Blackburn was appointed as the Chairwoman of the House of Representatives Subcommittee of Communications and Technology. So now, one of the members of Congress that was actively against the net neutrality rules is the head of the subcommittee overseeing the laws that will be written about current and new technologies.
At this point, the privacy rules had been approved under the previous administrations FCC, Chairman Pai had led a vote to state that the rules would not be enforced, and then Congress stepped up to review the rules using the Congressional Review Act (CRA) that allows Congress to review recently passed regulations and potentially undo them if both the Senate and House of Representatives approve.
In this case, 265 Senators and Congressional Representatives voted that the Privacy Rules approved by the FCC in 2016 should be eliminated. All 265 were Republicans with 190 Democrats and 15 Republicans voting not to overturn the rules.
The Privacy Rules that were struck down had given consumers the ability to have increased control over their personal information from ISPs. A two tiered opt out/opt in approach, consumers could opt out of allowing the ISPs to use personal information, including browsing history, to offer services through ads while requiring that ISPs get consumers to opt in to allow the ISPs to sell personal information to third party services for advertising or other purposes. There were also additional requirements in the rules that covered how an ISP had to respond in the event of a data breach.
The biggest issue with what Congress pushed forward, though, was that it prevented the FCC from passing rules in the future regarding privacy regulations.
Internet Money Generators
If you weren’t aware of how companies generate revenue online, it’s through ads. Google is the largest advertising agency in the world using your browsing habits and search history to provide targets ads and services to you by companies that pay them to do so. ISPs aren’t really that different in their goals. They want access to as much of your information as possible so that they can tell third party service providers they can offer targeted ads and services to consumers and then sell ad space to them.
There is one fundamental difference between an ISP and a search engine, though. An ISP has the ability to see all of your browsing activity because they are the company that’s providing your connection to the internet and, therefore, access to all those online services that have become part of our daily lives.
If someone wants to avoid providing their search history to Google, they can use alternative services like Duck Duck Go. If someone wants to avoid having all of their activity tracked by a browser, they can run the privacy version of the browser that doesn’t log data. But if someone wants to avoid having the service that’s connecting them to the internet avoid tracking their data, the only option is to choose a different internet service provider, and in many rural cases that isn’t an option as there may only be one ISP available.
This battle over the access to your personal information simply comes down to IPSs wanting to not lose access to your data so that it can be sold. The argument from the right side of the political aisle is that there isn’t a difference between an ISP and an edge service provider like Facebook, Netflix, or YouTube. They are all internet services and should be regulated the same way. While that argument is more than an oversimplification of how these companies work, there is one key truth to that argument – there is no difference between the companies in that they all want your data so that they can sell it or sell access to you.
ISPs are for profit companies. The government doesn’t own the cable crisscrossing the country that provides the interconnected network of devices that is the internet. ISPs are there to make money and you cannot fault them for that no matter how much you may philosophically disagree with the methodology with which they are doing business. We belong to a capitalist society and they have the right to try and make money in any legal way that they can by provide services or goods.
Who’s to Blame?
So, where does that leave the public at large? The privacy regulations have been struck down. It seems that the Open Internet Rules are next on the FCC’s chopping (or at least weakening) block. The government agencies, including the FCC, FTC, and Subcommittee on Communications and Technology, are all controlled by Republicans that disagreed strongly with the actions of the previous administration’s FCC.
The previous administration took full advantage of their 3-2 advantage in the FCC to push regulations through without having to reach out to their political counterparts leaving them alienated and primed to return the favor when their turn came about – like now.
The ISPs are doing exactly what a for profit business does by trying to make money, making it very difficult to find fault with their actions when they are looked at objectively. (It’s very easy to find fault with their actions when you’re thinking about it philosophically.)
The reality is that there is no one entity to blame. We are currently in a perfect storm where deregulation is going to become the norm. The current administration is going to seek out opportunities to do what they believe is right to improve business and bring back the return of trickle-down economics. To do this, it appears that the government is going to attempt to deregulate as much as possible and let the market decide what it’s willing to tolerate.
What Can You Do?
In a case where you disagree with the direction of the government, the first thing you can do is vote. The current administration didn’t start in 2017, it began back in 2012 or earlier when the Republican party started putting greater efforts into winning smaller, local elections to drive change and then use that power to influence larger elections like the Senate or Congressional Districts – which eventually led to the presidency.
Don’t be afraid to take five to ten minutes to take action and call your Congressional representatives and tell them what you think about the issues that are facing us to day. Letter writing is great, tweeting at them is good, but nothing carries as much weight as the instantaneousness of a phone call to emphatically state that you want them to represent your interests. This has been proven to be an effective way to influence decisions in the last few months.
The next thing you can do is be diligent. If your ISP is sharing your personal information and you don’t want them to, if you can change services to one that isn’t sharing your data then do so. Your monthly bill is your best way of speaking to them and taking your business elsewhere is like voting for the opposition.
Learning to protect yourself is also important. The EFF is offering lots of services about how to protect your privacy online. Take advantage of these courses – both online and in person – and keep your information safe and secure.
Stay informed about what’s going on. Some of these issues only get attention around the specific time that they may go into effect or are being voted on, but there is lead up time, and with government regulations, that often means a time for public comment.