Why Congress should act now on internet privacy

For a generation, the Internet’s success has relied on the commonsense principle of making things easy for consumers. From the smartphone to streaming video services, experience shows that consumers respond enthusiastically and in droves when given clear, uniform, workable and easily understood options.

Unfortunately, last fall, the Federal Communications Commission (FCC) took a giant step back from this sound principle by imposing rules that make the Internet an inconsistent and confusing place.

{mosads}The issue involves online privacy and the federal requirements that govern how your online information is used by advertisers, websites and Internet Service Providers (ISPs). For millions of Americans, this is an extremely important issue. That’s why so many commenters, including the Federal Trade Commission (FTC) urged the FCC to approve a system in keeping with what we know is successful – namely, straightforward rules that are consistent across the entire Internet.

Unfortunately, the FCC utterly failed, which is why Congress is right to step in to correct its mistake by invalidating the order through the Congressional Review Act (CRA). The Senate recently voted to repeal the ill-conceived FCC rules, and now the House should do the same.   

The biggest problem with the FCC’s action is that the rules it crafted conflict with well-established online privacy requirements already implemented by the FTC. This is far more than a simple bureaucratic turf issue. For years, the FTC has implemented a comprehensive privacy framework that guides how companies manage consumer data and respect consumer preferences. The FTC has a proven track record of resolving thorny issues in ways that make things better for internet users.

But rather than extending the FTC’s existing system across the rest of the Internet ecosystem, the FCC instead created a completely different set of rules. These rules, as the FCC acknowledges, only apply to some of the Internet.

As the history of consumer product adoption on the Internet shows, that’s a huge problem. Because the FCC did not adopt the FTC’s framework, consumers, innovators and businesses alike must now try to understand and cope with two differing online privacy standards.

In the FCC’s fanciful theory, the FTC’s framework governs online businesses, websites and advertisers while its own rules govern ISPs, and only ISPs. The FCC’s decision seems to subject this to a confusing implementation for both consumers and businesses. Let’s say, for example, that a consumer does not opt in to an ISP’s collection of information, but then continues to see targeted ads delivered by a website not subject to the same restrictions as ISPs. At the very least, that will confuse consumers. But it could also undermine their very confidence in the Internet, an outcome we should seek to strenuously avoid. The FCC’s decision to craft its own rules and apply them to only parts of the Internet makes no sense in the real world.

What’s more, the FCC’s rules also threaten innovation, since they make it difficult for ISPs to provide customers with customized services and capabilities. This could have serious negative consequences for the health of our nation’s digital economy. If we have learned anything from previous attempts to regulate the Internet, it is that trying to create individual categories for changing activities usually fails. The marketplace is constantly evolving, and creating legal “silos” today to regulate tomorrow’s new activities is a fool’s errand.

Congress has the power to reject this mistake. Through the CRA, Congress can a crucial step toward reestablishing a consistent set of privacy requirements across the entire internet ecosystem.

As my friend and former colleague, former Rep. Henry Waxman (D-Calif.) noted last fall, the key issue in this debate isn’t whether federal rules should protect privacy, but how to do it effectively. He too has expressed grave concerns about the likely consumer confusion from the FCC’s new rules.

Few issues are more important to Americans’ everyday lives than protecting their privacy, particularly online privacy. Congress is right to act to make sure this is an easy and consistent process. The clock is ticking and the time for action is now.

Mary Bono served in Congress from 1998-2013. She is co-chair of the 21st Century Privacy Coalition.

The views expressed by this author are their own and are not the views of The Hill.