ISP-Loyal Marsha Blackburn Pushing New Broadband Privacy Law, But It's A Hollow PR Show Pony With No Chance Of Passing

from the legislative-lambada dept

You might recall that Tennessee Representative Marsha Blackburn recently played a starring role in gutting FCC consumer broadband privacy protections using the Congressional Review Act. It was one of the more bare-knuckled examples of pay to play government in recent memory, and many of the straight GOP-line voters have been getting an earful from their constituents back home. Utterly unmoved, most of those lawmakers have quickly shifted on their heels and are now busy trying to gut net neutrality with the same blatent disregard for public opinion they showed while killing privacy protections.

In what appears to be largely a PR move to try and deflect significant criticism for her large ISP-friendly policies, Blackburn has subsequently introduced the BROWSER Act -- aka the Balancing the Rights of Web Surfers Equally and Responsibly Act. The act, as the FCC's now-discarded rules would have done, requires that consumers must opt in before a broadband provider is allowed to collect and sell subscriber information.

According to a Blackburn press statement on the legislation, killing the FCC's popular privacy protections, then introducing this new bill (which has little more than zero chance of passing for reasons we'll get into) was necessary to eliminate "confusion":

"As a Member of the House Homeland Security Committee's Cybersecurity Subcommittee, internet privacy and security must be a top priority. Step one in that process was to override any regulation that creates more confusion by giving jurisdiction to multiple agencies, only to have them regulate only one-half of the digital world.

Step two in that process is to introduce comprehensive internet privacy legislation that will more fully protect online users in their use of Internet Service Providers (ISPs), search engines and social media,” said Fitzpatrick. “The BROWSER Act does just that. We must offer American citizens real internet privacy protection, not mere lip service which gives internet users false expectations about their level of online security. I encourage all House members who are serious about protecting our constituents' online privacy to join me in advancing this bill."

So, as we already noted in great detail, this appears to be part of a script that was hashed out months ago by the GOP. Step one is to gut FCC oversight authority over one of the least-competitive sectors in American industry by killing the privacy protections, walking back net neutrality, and dismantling the FCC's 2015 decision to classify ISPs as common carriers under Title II of the Communications Act. From there, the plan is to shovel any remaining oversight of giant broadband duopolies to an FTC Blackburn (and the ISPs that adore her) know is ill suited to provide meaningful, real oversight.

The FTC lacks rule-making authority, is already under-funded and over-extended, and AT&T lawyers have shown they may already be able to tapdance around the agency's authority anyway. This was all pretty well spelled out in a recent interview by former FCC boss Tom Wheeler, during which he called this particular plan a "fraud":

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

With the attacks on net neutrality and privacy becoming politically toxic, it's highly unlikely that Blackburn's proposal sees any serious support among Democrats. And because it actually would wind up expanding regulatory authority over "edge providers" (Netflix, Google, other content companies), it's not likely to see support among many Republicans, either. According to a joint statement made under the umbrella of the Internet Association, internet companies like Google, Netflix, and Twitter also oppose the new law:

We, along with a broad swath of the American economy, are aware of the BROWSER Act and are tracking the proposal. 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.

This is all an arguably bizarre move for a politician that has shown, time and time again, that her very top priority is always the interest of giant ISPs like Comcast and AT&T -- coincidentally her top campaign contributors. Blackburn, who supported SOPA, has pushed legislation repeatedly trying to kill net neutrality under the banner of "restoring freedom." She's also gone out of her way to defend AT&T and Comcast's efforts to pass state-level protectionist laws hindering competition, which is a major reason her home state of Tennesee is one of the least connected states in the nation.

And this new privacy legislation -- which again expands regulation of internet content companies -- is also strange for a lawmaker that has consistently insisted over the years that "regulating the internet" kills innovation:

Which brings us to the multi-million-dollar question: if Blackburn is such an obvious servant to the interests of telecom duopolies, why is she pushing a law that would add regulatory burdens on both ISPs and content companies alike?

As the ACLU was quick to note in their review of the bill, the biggest goal appears to be to preempt a lot of the state and city regulations that have been popping up all over the country in response to the killing of the FCC's rules. More than 17 states have introduced privacy broadband rules in the wake of the death of the FCC rules, and whatever loophole-filled final draft Blackburn submits would be certain to preempt these already tougher protections:

In some cases, state legislation being considered is stronger than what would have been required under the FCC rules. For example, in New Hampshire, a bipartisan bill would prohibit providers from offering discounts to individuals who waive their privacy rights – something the ACLU urged but the FCC declined to do in its rules. Many states have also pressed for limits on not just the use but also the collection of information.

...Skepticism of Rep. Blackburn’s motives is also warranted given her voting history. Rep. Blackburn introduced the legislation to gut the FCC rules. If she had truly been interested in creating parity between the privacy standards applied to edge and internet providers, she could and should have worked to strengthen and replace the rules. Instead, she irresponsibly pushed for reversal of the rules, leaving an enormous privacy gap. Introduction of this legislation, which thus far shows no indication that it will become law and could easily be watered-down, does not remedy this reckless act."

Indeed, killing these state-level privacy protections does appear to be a top GOP priority after the March vote to kill the FCC rules. FCC majority Commissioners Ajit Pai and Mike O'Rielly have already said they plan to somehow prevent states from imposing such protections. You're to ignore that Pai and Blackburn have argued that anti-competitive protectionist laws written by the likes of AT&T are a "states' rights" issue, but now when states are looking to actually protect consumers it's a bridge too far.

But the primary reason Blackburn is pushing this proposal is that she knows it has absolutely no chance of passing, but may provide PR cover for her increasingly-obvious, duopoly-favoring telecom policy proposals ahead of the 2018 elections. Blackburn has been hammered in recent months via giant billboard ads purchased by activists criticizing her privacy sell out in her home state of Tennessee. There's nothing particularly subtle about the campaign:

Either way it's a win/win for Blackburn. If it passes, Blackburn's friends at AT&T and Comcast will ensure it's crafted to be aggressively weaker than state-level laws, overseen by an FTC they know won't have the authority, funding or time to actually police the subject. If it doesn't pass, it still functions as a marketing message designed to try and convince the voters that Blackburn isn't the anti-consumer Comcast coddler her voting record and campaign contributions clearly show she is.


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  • icon
    Ninja (profile), 31 May 2017 @ 5:51am

    Well, considering some idiots keep getting elected despite showing repeatedly they don't give a damn about their voters (she was already reelected after the SOPA thing, no?) I think she's putting too much effort into pretending she cares.

    reply to this | link to this | view in chronology ]

    • identicon
      Toby, 31 May 2017 @ 8:00am

      Re: "elected"

      63% of Tennessee eligible voters DID NOT vote for Marsha Blackburn in 2016 --- so it's perfectly just for her to be a bona fide Congress-woman, under the solemn Majority-Rule principle of representative democracy..... (?)

      Tennessee Nov 2016 voter turnout rate was 51.2%. Blackburn and her Democrat & Independent election opponents all ran unopposed in their respective Tennessee Primaries.

      Blackburn is not unusual--- all sitting Congressmen (& US President) assumed office with only a minority-vote total from their electorate.

      Does anybody here detect any practical flaw in how American Representative Democracy actually operates ?

      reply to this | link to this | view in chronology ]

      • icon
        jupiterkansas (profile), 31 May 2017 @ 8:02am

        Re: Re: "elected"

        It's not a flaw. It's how it was designed.

        reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 31 May 2017 @ 9:24am

        Re: Re: "elected"

        I do believe there should be a minimum amount of voters overall or the candidates have to be replaced. If they couldn't get the electorate to care then they aren't up to the job. Still, 51,2% of Tennessee apparently don't care about their future as well given such rule isn't valid. If I had no candidate on this specific case I'd vote blank or in some other candidate (dunno, maybe Homer Simpson).

        reply to this | link to this | view in chronology ]

        • identicon
          Thad, 31 May 2017 @ 1:20pm

          Re: Re: Re: "elected"

          I do believe there should be a minimum amount of voters overall or the candidates have to be replaced.

          I forget, have we discussed this before or was that with someone else?

          The problem with the argument that a candidate shouldn't be allowed to take office if some criterion isn't met is that it presents an obvious series of failure modes. Under these circumstances, would Tennessee just leave that Senate seat vacant? Indefinitely? Until turnout improved?

          And 51.2% is actually pretty good turnout. For example, turnout in the US midterms in '14 was 36.4% nationwide. The highest turnout that year was in Maine (59.3%). Where do you draw the line for a do-over? 55%? Does that mean that only Maine, Wisconsin, and Alaska get to elect representatives that year and the other 456 seats stay empty until turnout improves?

          Your solution isn't practical, is what I'm saying.

          There are good ways of increasing turnout. Moving elections off of fucking Tuesdays and onto a weekend would be a good start. Making election day a federal holiday would be an alternative (or I suppose you could do both). Increasing the number of polling places, widening the early voting window, and allowing voting by mail in every state would all help too.

          IIRC Australia has extremely high turnout because voting is mandatory; you get fined if you don't vote. I would favor such a system. Yes, it means some people will vote who aren't informed or engaged -- but I'm pretty sure we already have that problem. On balance, I think more voter turnout is better; "the worst system of government, except for all the others that have been tried" and all that.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 31 May 2017 @ 1:43pm

            Re: Re: Re: Re: "elected"

            IIRC Australia has extremely high turnout because voting is mandatory; you get fined if you don't vote. I would favor such a system. Yes, it means some people will vote who aren't informed or engaged -- but I'm pretty sure we already have that problem. On balance, I think more voter turnout is better; "the worst system of government, except for all the others that have been tried" and all that.

            I would be in favor of mandatory voting only if there was an option for 'None of the above' on the ballot, with perhaps a do-over with new candidates if the majority of people pick that. The alternative is that people would be forced to support someone they didn't actually want in office, which rather defeats the purpose of voting in the first place. At that point you might as well flip a coin, fill in the ballot accordingly and just tell people 'This is who you're voting for'.

            reply to this | link to this | view in chronology ]

            • identicon
              Thad, 31 May 2017 @ 2:09pm

              Re: Re: Re: Re: Re: "elected"

              I would be in favor of mandatory voting only if there was an option for 'None of the above' on the ballot,

              Well, yes; you can't obligate people to vote for any candidate.

              A "none of the above" box is fine. Or just accepting blank ballots, though I suppose "none of the above" might be better because it forces people to actively fill out the ballot rather than just sign their name and submit a blank.

              with perhaps a do-over with new candidates if the majority of people pick that.

              I don't see how this doesn't create exactly the same problem I was just talking about. Can a seat just be left empty indefinitely? What if it's the President?

              reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 31 May 2017 @ 2:21pm

                Re: Re: Re: Re: Re: Re: "elected"

                I don't see how this doesn't create exactly the same problem I was just talking about. Can a seat just be left empty indefinitely? What if it's the President?

                True, it would be a tricky balancing act between preventing the seats being filled and avoiding electing people that the majority of voters do not want, I was just tossing the idea out as a possibility.

                reply to this | link to this | view in chronology ]

                • identicon
                  Thad, 31 May 2017 @ 5:20pm

                  Re: Re: Re: Re: Re: Re: Re: "elected"

                  Yeah, there are other buffers I'd like to see implemented for "avoiding electing people that the majority of voters do not want", too. I've railed against first-past-the-post here before, and my criticisms stand; there are a lot of different alternatives, and while none of them are perfect, many would be preferable to the system we've got now.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Wendy Cockcroft, 5 Jun 2017 @ 2:28am

                    Re: Re: Re: Re: Re: Re: Re: Re: "elected"

                    What, you mean proportional representation? I used to argue against it until someone pointed out that even a small minority can make a difference. You should see what the one and only Pirate MEP, Julia Reda, is achieving in the European Parliament. That is what swung it for me.

                    Would it be possible to change the electoral system in the US?

                    reply to this | link to this | view in chronology ]

              • icon
                R.H. (profile), 31 May 2017 @ 8:51pm

                Re: Re: Re: Re: Re: Re: "elected"

                Austrailia does allow blank ballots (since they use IRV that doesn't tend to happen often though). However, I agree that a none of the above option is better than that.

                reply to this | link to this | view in chronology ]

          • icon
            Ninja (profile), 1 Jun 2017 @ 6:32am

            Re: Re: Re: Re: "elected"

            Agreed. There are problems with my idea I do recognize. I just wonder if there are any mechanisms we could implement to prevent such cronyism.

            reply to this | link to this | view in chronology ]

            • identicon
              Thad, 1 Jun 2017 @ 10:56am

              Re: Re: Re: Re: Re: "elected"

              Cronyism's another topic. I'm a pretty firm believer in reversing corporate personhood and placing limitations on the consideration of money as speech (which is, by definition, a some-are-more-equal-than-others proposition). I don't see either of those things happening in the near future, but they're probably likelier than completely changing our voting system.

              reply to this | link to this | view in chronology ]

        • identicon
          REM, 31 May 2017 @ 3:01pm

          "elected"

          .

          "51.2% of Tennessee apparently don't care about their future"


          >>> "Withdrawing in disgust is not the same thing as apathy"

          We certainly have a dysfunctional and often malicious Congress...and elections don't improve it. Perhaps peaceful non-cooperation by "non-voting" citizens could reform that sorry political institution.

          220 vacant seats in Congress might get their attention.

          Funny how Congress insists upon a Quorum to vote on anything -- but thinks formal election of Congressmen to office is totally legitimate if only one citizen were to show up to vote on Election Day.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 6:22am

    Was there a change in the Techdirt headline style guide I wasn't aware of?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 6:24am

    Doesn't matter if doomed, support your principles. Techdirt is supposedly for net neutrality and privacy, right? But excellent bill comes along, and you're against!

    I should really pay more attention to details, though know that Google is paying off everyone. From link below:

    Brad Templeton, former chairman of the EFF, admitted on a blog post that he has "done work for Google advising on software design." "I'm a fan of Google, and have been friends with Google's management since they started the company," Templeton wrote... ... Longtime entrepreneur Joe Kraus was an EFF board member for approximately seven years while also serving as an executive at Google, according to his own LinkedIn page. Fred von Lohmann, who now works as legal director of copyright for Google, was employed as the EFF's senior staff attorney for more than eight years. Dan Auerbach went from working at Google for four years to working at the EFF for 3 years. Chris Palmer, currently the senior software engineer at Google, had a different trajectory, going from Google to the EFF and then back to Google. Others, like Erica Portnoy and Derek Slater, also worked at both the advocacy organization and the corporation.

    http://dailycaller.com/2017/05/29/google-facebook-are-super-upset-they-may-no-longer-be- able-to-sell-your-internet-data-without-permission/

    So now I know why Techdirt likes EFF: it's interlocked with Google, revolving door employees.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 6:25am

    Doesn't matter if doomed, support your principles. Techdirt is supposedly for net neutrality and privacy, right? But excellent bill comes along, and you're against!

    I should really pay more attention to details, though know that Google is paying off everyone. From link below:

    Brad Templeton, former chairman of the EFF, admitted on a blog post that he has "done work for Google advising on software design." "I'm a fan of Google, and have been friends with Google's management since they started the company," Templeton wrote... ... Longtime entrepreneur Joe Kraus was an EFF board member for approximately seven years while also serving as an executive at Google, according to his own LinkedIn page. Fred von Lohmann, who now works as legal director of copyright for Google, was employed as the EFF's senior staff attorney for more than eight years. Dan Auerbach went from working at Google for four years to working at the EFF for 3 years. Chris Palmer, currently the senior software engineer at Google, had a different trajectory, going from Google to the EFF and then back to Google. Others, like Erica Portnoy and Derek Slater, also worked at both the advocacy organization and the corporation.

    http://dailycaller.com/2017/05/29/google-facebook-are-super-upset-they-may-no-longer-be- able-to-sell-your-internet-data-without-permission/

    So now I know why Techdirt likes EFF: it's interlocked with Google, revolving door employees.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 12:43pm

      Re: Doesn't matter if doomed, support your principles. Techdirt is supposedly for net neutrality and privacy, right? But excellent bill comes along, and you're against!

      Only you could make Blackburn look sane. Congrats I guess.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 6:29am

    That video makes me absolutely sick.

    reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 31 May 2017 @ 7:37am

      Re:

      The terrifying thing is it may not just be the money talking. She might actually believe all that stuff.

      reply to this | link to this | view in chronology ]

      • icon
        discordian_eris (profile), 31 May 2017 @ 11:19am

        Re: Re:

        Almost no politician actually believes what they profess to believe. They can't - there are too many contradictions for anyone but a sociopath to encompass. And while there are sociopaths in Congress, most are just shallow and venal, and thus easily corruptible. Consider that over 50% of what a congress-critter does is fundraising. They have not the time to actually do what they are elected to do. It doesn't help matters that the main occupation of being in Congress, seems to just be being in Congress.

        They have become a living manifestation of Sturgeon's Law; the embodied avatar of kakistocracy. To pile on one more, they obviously have heard of Wheaton's Law and seek to violate it at every turn. Rule 37: No matter how fucked up it is, there is always worse than what you just saw. And it will be on MSNBC and FOX News tomorrow night.

        reply to this | link to this | view in chronology ]

  • identicon
    Kevin Hayden, 31 May 2017 @ 8:05am

    VOTE THIS BITCH OUT!!!

    Hopefully, the people of Tennessee have finally woken up.
    If they don't get rid of Blackburn this time around then they deserve whatever garbage laws she manages to foist on them. Too bad for the rest of the USA, though, since they won't have a choice in whether she gets turfed or not. However, I'm sure they have their own 'Blackburns' who shouldn't be returned to office either. All of you had better educate yourselves about the issues and get out to vote next time. Either way, you'll truly end up with the government you deserve, but only by paying attention and voting will you get the government most of you want.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 31 May 2017 @ 1:26pm

      Come on, man.

      you'll truly end up with the government you deserve

      I thought for a second "Oh, it's this guy again," but I notice you're actually posting under a name.

      So, uh, you do realize you're quoting an anti-Enlightenment monarchist, yes? As well as spouting the catchphrase of one of Techdirt's most prolific trolls?

      Aside from that, the all-caps misogyny is uncalled for, dude. (And so are at least two of those exclamation points.) You can criticize Blackburn as a politician without denigrating her gender.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 8:18am

    Blackburn is doing ISP's bidding again

    I think you may have misread what she is trying to do.

    The ISP's and their puppet politicians initially complained that "it wasn't fair" that they have to abide by other rules than Google and Facebook. So the FCC removed those privacy rules.

    But what the ISPs were after, was not just to remove those rules, but also hurt Google/Facebook, so they can have an advantage in data mining. And this is what this bill is trying to do. It's now bringing back those "unfair rules" but to Google/Facebook, etc instead of the ISPs.

    Blackburn has always been an ISP puppet. She's only doing their bidding some more here, she's not doing it to protect consumers.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 31 May 2017 @ 1:28pm

      Re: Blackburn is doing ISP's bidding again

      But what the ISPs were after, was not just to remove those rules, but also hurt Google/Facebook, so they can have an advantage in data mining. And this is what this bill is trying to do. It's now bringing back those "unfair rules" but to Google/Facebook, etc instead of the ISPs.

      That's not really accurate. It's true that this bill has flaws, as noted in the article, but it would require opting in for data collection by ISPs and websites.

      reply to this | link to this | view in chronology ]

  • identicon
    Thad, 31 May 2017 @ 1:31pm

    On balance, I think it's probably the best bad option we've got now (much as Title II was the best bad option for net neutrality). I really don't like its preemption of stronger state privacy protections, but I think the best-case at this point would be to pass it and hope that states pass stronger protections anyway and prevail in court when challenged.

    As you say, though, it sure doesn't look likely that it'll pass at all.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 31 May 2017 @ 1:54pm

      Bad rules can be worse than no rules

      I'd disagree. If there is one thing that Blackburn's voting record has made crystal clear is that she is not on the side of the public in any matter involving the companies that own her.

      As such if she's pushing this bill it's intended to help them in some way(preventing states from crafting their own rules seems likely) and/or be a cheap publicity stunt in an attempt to salvage her joke of a reputation among the voters in her state.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 31 May 2017 @ 2:13pm

        Re: Bad rules can be worse than no rules

        I never said Blackburn's motivations are pure or that she has the public's best interests at heart. I'm sure neither of those things is true.

        I'm just saying that, regardless of the motives of its sponsor, this bill is the best shot most of us have at any online privacy protections in the foreseeable future.

        I'm not saying it's a good deal. I'm saying I think it's probably better than nothing.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 31 May 2017 @ 2:28pm

          Re: Re: Bad rules can be worse than no rules

          I can see where you're coming from, I'm just leaning towards disagreeing because of who the bill is coming from.

          With her history my default assumption is that if she's for it it's bad for the public, even if it might not seem obvious exactly how and how bad on the surface.

          reply to this | link to this | view in chronology ]

          • identicon
            Thad, 31 May 2017 @ 5:31pm

            Re: Re: Re: Bad rules can be worse than no rules

            True, but if we're to question the motives of the person supporting it, we should also question the motives of the companies opposing it. When I see a multibillion-dollar corporation tut-tutting that a regulation will "upend the consumer experience online and stifle innovation", I very seldom get the impression that said company has very much interest in my consumer experience.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 1 Jun 2017 @ 12:00am

              Re: Re: Re: Re: Bad rules can be worse than no rules

              A very good point, between the two neither of them exactly exude trustworthiness, I suppose it comes down to which you think is likely to cause less damage in the long-term.

              No rules at the moment with the possibility for (hopefully) stronger rules down the line on a state-by-state basis, or rules likely written by the ISP's deliberately designed to appear strong but force them to give up nothing they actually want and prevent those stronger rules from being brought into place.

              reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Jun 2017 @ 7:48am

    White (board) is Black (board)

    reply to this | link to this | view in chronology ]


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