BROWSER Act and Privacy Discussed in House Communications Subcommittee Hearing

The House Subcommittee on Communications and Technology held a hearing this week on Protecting Customer Proprietary Network Information in the Internet Age, which put the BROWSER Act and privacy center stage.

Customer Proprietary Network Information (CPNI) at telecommunication companies is regulated by the 1996 Communications Act. They are required to protect the confidentiality of the personal information that consumers are relaying over their networks. However, the law doesn’t apply to communications via online platforms, mobile apps and other services.

In October 2016, the Federal Communications Commission adopted a privacy rule aimed at Internet Service Providers (ISPs) to protect the confidentiality of personal information over their networks. However, this law was nullified by the Congressional Review Act, which President Trump signed into law on April 3, 2017. Critics of the FCC law called it an unprecendented expansion of its regulatory authority.

And thus the problem remains. Customer information from a phone call made through a telecommunications company is protected by law while the same call made through a mobile app over the internet is not protected.

The BROWSER Act is the shortened name for the bill, titled Balancing the Rights of Web Surfers Equally and Responsibly Act of 2017, from last year to address this problem. It was introduced into the U.S. House of Representatives last year by Rep. Marsha Blackburn (R-TN). Blackburn is the chair of the House Commerce Committee’s Subcommittee on Communications and Technology.

One of the key sticking points based on the discussions in the hearing is who should have the authority to govern privacy. The Federal Trade Commission doesn’t have rulemaking authority and the staff size of other agencies. If the FTC is going to be more than a toothless watchdog, it would need rulemaking authority and the budget for an enforcement staff.

Another area of controversy is whether state privacy efforts should be preempted by federal law. Critics of the California Consumer Privacy Act are already warning of the potential compliance costs if each state decides to pass its own regulations. Several business leaders, in response to what happened in CA, have already called on the federal government to act before that happens.

According to Politico, around three dozen tech industry representatives had a conversation about online privacy at the Commerce Department this week led by the National Telecommunications and Information Administration. The discussions are part of a White House effort to identify a path forward on privacy given public attention on the handling of their data, the General Data Protection Regulation which went into effect in May, and the new California Consumer Privacy Act.

A further question is whether the privacy protections should be “opt in” or “opt out”. Europe chose for GDPR to require the tougher opt in standard. California chose to allow businesses to automatically sell personal information but allow consumers to opt out from the distribution of their information to third parties. It is also possible that Congress could adopt a mixed approach, requiring opt in concerning certain confidential information and opt out for other personal information.

Actions out of Congress continue to suggest that most members believe that some action needs to be taken. Earlier this week, members of the House asked Apple and Alphabet about privacy related to their offline data collection, third-party apps and embedded microphones in a pair of letters from the House Committee on Energy and Commerce. However, the discussions in the House Communications Subcommittee make clear that there may not be consensus yet on the specific measures that need to be adopted.

Other Blog Posts on Privacy Bills in the US House:

Internet Bill of Rights for Privacy
Information Transparency and Personal Data Control Act
New Privacy Bills: APPS Act and DATA Act of 2018
Highlights of the Secure and Protect Americans’ Data Act in U.S. House
Highlights of Browser Act to Protect Privacy in U.S. House
Privacy Focus of Last Week’s DCCP Subcommittee Hearing on Digital Advertising
House Subcommittee Asks FTC Commissioners About Consumer Privacy
Do Not Track Kids Act Back in Congress

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