Rep. Blackburn Files Bill To Return ISP Regulation To Federal Trade Commission

King & Spalding

On May 18, 2017, Representative Marsha Blackburn (R. TN) introduced H.R. 2520 (the “Bill”) to the House of Representatives, which purports to shift online privacy regulation authority from the Federal Communications Commission (“FCC”) to the Federal Trade Commission (“FTC”).  The introduction of the Bill by Rep. Blackburn comes on the heels of the issuance of a Notice of Proposed Rulemaking (“NPRM”) by FCC Chairman Ajit Pai, which was approved by the FCC in a 2-1 vote, and proposes to reverse the FCC’s 2015 Open Internet Order (“Title II Order”) classifying Internet service providers (“ISPs”) as Title II common carriers.  Because the 2015 classification of ISPs as common carriers largely exempted them from FTC authority, the Bill, in conjunction with the NPRM, would shift the weight of regulatory authority over ISPs from the FCC to the FTC.

The Bill would “require providers of broadband internet access service and edge services . . . to give users opt-in or opt-out approval rights with respect to the use of, disclosure of, and access to user information collected by such providers based on the level of sensitivity of such information, and for other purposes,” according to its title.  Although the full text of the Bill has not yet been released, the Title II Order mandated that ISPs require users to opt-in to any collection of personal information and data of such users by their ISP rather than providing an opt-out mechanism.  Because requiring users to opt-out allows ISPs to engage in such collection practices until they are told not to by individual users, opt-out regimes arguably afford users fewer privacy protections than an opt-in scheme.  An opt-in scheme allows ISPs to engage in such collection practices only when authorized by individual users, thus adding an additional hurdle ISPs must clear before engaging in such data collection practices.  Whether the Bill provides additional, alternative privacy protections to counteract any perceived flaws with an opt-out scheme will be known once the full text of the Bill has been released to the public.

No votes or hearings are scheduled for the Bill at this time, likely because the relevancy of the Bill is tied to the FCC’s ultimate decision on the NPRM, for which the 90-day comment period is open until July 26, 2017.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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