How Congress dismantled privacy rules
Congressional Republicans knew their plan was potentially explosive. They wanted to kill landmark privacy regulations that would soon ban internet providers, such as Comcast and AT&T, from storing and selling customers’ browsing histories without their express consent.
So after weeks of closeddoor debates on Capitol Hill over who would take up the issue first — the House or the Senate — Republican members settled on a secret strategy, according to Hill staff and lobbyists involved in the battle. While the nation was distracted by the House’s pending vote to repeal Obamacare, Senate Republicans would schedule a vote to wipe out the new privacy protections.
On March 23, the measure passed on a straight partyline vote, 50 to 48. Five days later, a majority of House Republicans voted in favor of it, sending it to the White House, where President Donald Trump signed the bill in early April without ceremony or public comment.
“While everyone was focused on the latest headline crisis coming out of the White House, Congress was able to roll back privacy,” said former Federal Communications Commission chairman Tom Wheeler, who worked for nearly two years to pass the rules.
The process to eliminate them took only a matter of weeks. The blowback was immediate.
Constituents heckled several of the lawmakers at town halls. “You sold my privacy up the river!” one person yelled at Sen. Jeff
Flake, R-ariz. — lead sponsor of the Senate bill — at a gathering in April.
The quick undoing of the internet privacy rules has prompted lawmakers in more than a dozen states to propose local laws to restore privacy protections to their constituents.
The FCC privacy rules were among the first of more than a hundred regulations and laws being targeted for elimination or massive overhaul by Trump and Republican members of Congress who want to dismantle Obama-era regulations they view as burdensome.
“Trump and the Republicans are doing so many different things on parallel tracks, the news media and activists can’t follow it all,” said Trump adviser and former House speaker Newt Gingrich. “This is by design.”
The internet privacy rules were adopted in October during the last days of the Obama administration after an intense battle that pitted large internet service providers, the advertising industry and tech giants against consumer advocates and civil rights groups.
The rules required internet service providers to get explicit consent before they gather their customers’ data — their browsing histories, the locations of businesses they physically visit and the mobile applications they use — and sell it to third parties. Proponents said the rules were necessary because consumers must use a provider to access the internet.
The requirements were modeled after a law passed decades ago by Congress that prohibited telephone companies from collecting customers’ calling histories and selling the information to third parties.
The industry, Republican FCC commissioners and lawmakers said the restrictions were too broad and should be limited to highly sensitive data, such as personal medical information, not data gathered from activities like online car shopping. The rules, they said, would cause consumers to miss out on customized promotions. And, opponents said, the threat to privacy was overstated — a provider might learn that a person visited a website but would not typically know what the person did while there.
Because the commission’s privacy rules passed on a party-line vote, three Democrats in favor and two Republicans opposed, the rules were viewed as extremely partisan. This made them vulnerable from the start, said Jon Leibowitz, co-chair of the 21st Century Privacy Coalition, a group financed by internet providers, which led the effort to eliminate the requirements.
The campaign to kill the FCC rules began just a few weeks after Trump’s November victory.
Lobbyists from trade groups funded by large broadband companies — including Leibowitz’s group and the Consumer Technology Association — made phone calls and held small, private meetings with Republican congressional aides, according to Hill staff, consultants and lobbyists on both sides of the issue. They were shopping for bill sponsors and approached Flake and Rep. Marsha Blackburn, R-tenn., who had been vocal opponents of the rules when they were being crafted at the FCC. The two agreed to champion the cause.
“We had a broad coalition of groups, and we thought, ‘We don’t like it; let’s present this to them,’ ” said Julie Kearney, vice president of regulatory affairs with the Consumer Technology Association, a trade group for the industry. “The administration and Congress did not come to us.”
By January, trade groups for tech companies such as Facebook and Google had joined the fight to undo the privacy rules, according to records and interviews. Those companies are regulated by a different government body, the Federal Trade Commission, but they worried that Congress might someday find a way to expand the reach of the rules so that they apply to all technology companies.
Trade groups for large advertisers also got involved in the effort to repeal the law, as did the U.S. Chamber of Commerce.
Consumer and civil rights groups were quickly outnumbered by their opponents, by a ratio of at least 50 to 1, according to Hill staff and lobbyists.
For weeks, neither Flake nor Blackburn scheduled a vote because members feared a potential backlash from voters, according to lobbyists and several Hill staff members.
“There was a bit of chicken played between the House and Senate,” said Dallas Harris, another lobbyist for Public Knowledge.
Finally, Flake scheduled the vote for March 22. It was not until then that the campaign against it took off.
The American Civil Liberties Union, Free Press and other groups delivered a petition with 100,000 signatures to Senate Majority Leader Mitch Mcconnell, R-KY., and other congressional leaders hours before the Senate began its debate on the bill.
When Senate Republicans passed the bill the following day on a narrow party-line vote, the issue finally exploded across the internet and in mainstream, liberal and conservative media.
Fearing House Republicans would defect, Hill staff said, Mcconnell and other Republican leaders asked the Trump administration to issue a statement signaling that he would sign the bill. The White House staff did so.
Within hours, Blackburn introduced the bill on the House floor and called for a vote. Fifteen Republicans voted against the bill, but it still passed 215 to 205.