“Browser Act” Brings Back Internet Privacy Rules, Extends Them Beyond ISPs

Earlier this year, the passage of legislation targeted at revoking Federal Communications Commission (FCC) oversight on online privacy for ISPs drew a major outcry from online observers.

Now, the heart of those privacy rules is being brought back to life. Sort of.

This week, Rep. Marsha Blackburn (R-TN) introduced the “Browser Act,”  (opens in a new tab) a bill that would reapply those internet privacy rules to ISPs—as well as to search engines, social networks, and other websites, which are referred to as “edge providers” in industry parlance. It would put millions of websites in a position where they would have to ask consumers for the right to sell their data, turning what traditionally has been an opt-out mechanism into an opt-in mechanism.

The bill, as Ars Technica notes  (opens in a new tab), would also prevent states from passing their own privacy rules—which the publication noted ran against Blackburn’s own stance in favor of “states’ rights” on ISP privacy rules when they were first implemented by the FCC.

In comments to Recode  (opens in a new tab), Blackburn attempted to reframe the issue around online privacy in general—particularly in the wake of the privacy rule repeal, which opened her, as well as her Republican colleagues and the telecom industry, up to criticism. (The rules hadn’t taken effect at the time of their repeal.)

“What all of that storm after the privacy [vote] did do was to turn the focus to the entities that are doing extensive data mining, and fill your browser page with pop-ups and your inbox, your junk mail, with all of this spam, and it helps people to realize where that activity is being generated,” she said.

Blackburn’s approach to the issue reflects a criticism of the privacy rules that gained currency among Republicans and some industry groups. When net neutrality was brought under common carrier regulations by the FCC in 2015, this put the FCC in charge of ISP regulatory issues that previously would have fallen under the Federal Trade Commission. Groups like USTelecom and the NCTA: The Internet & Television Association argued that the ISP privacy rules that were repealed by Congress were unfair because ISPs faced tougher privacy regulations than did web providers.

(The FCC, under Republican leadership, is currently attempting to roll back the net neutrality rules.)

Blackburn’s bill, which is still fairly new, has drawn skepticism and even outright criticism from internet and other advocacy groups. Noah Theran, a spokesperson for the Internet Association, told The Hill  (opens in a new tab) that “this bill has the potential to upend the consumer experience online and stifle innovation.”

“Policymakers must recognize that websites and apps continue to be under strict [FTC] privacy enforcement and are not in an enforcement gap, unlike other stakeholders in the ecosystem,” Theran added.

Meanwhile, Brad Weltman, the Interactive Advertising Bureau’s vice president for public policy, meanwhile, expressed concerns in a statement to Wired  (opens in a new tab). “The ‘Browser Act’ could significantly impact much of the trillion dollars in GDP the ad-supported internet generates, taking millions of jobs along with it,” Weltman said.

And the American Civil Liberties Union, while noting to Recode  (opens in a new tab)that the general concept behind the law had potential, said Blackburn could have gone about it differently.

“The way to do it was not … [through] gutting the FCC’s rules; the way to do it was actively working on a replacement,” said Neema Singh Guliani, ACLU’s legislative counsel.

Rep. Marsha Blackburn, the architect of the “Browser Act.” (Gage Skidmore/Flickr)