Dear Representative,

The R Street Institute and TechFreedom urge all Members to vote YES on H.J. Res. 86, a resolution introduced by Rep. Marsha Blackburn (R-TN) that would nullify the Federal Communications Commission’s (FCC) broadband privacy order using the Congressional Review Act (CRA). The Senate voted 50-48 last week to undo the order.

Under previous Chairman Tom Wheeler, the FCC promulgated aggressive new rules for how internet service providers (ISPs) can use their customers’ personal information. This followed the transfer of consumer protection authority from the FTC to the FCC under Title II reclassification.

As R Street Associate Fellow Steven Titch explains, the FCC’s privacy regulations are framed as pro-consumer, but that’s not the case. Rather than treating ISPs more aggressively than edge services, we should have a consistent and uniform regulatory framework for consumer privacy on the Internet. Ideally this would rest with the FTC, which has more experience and better tools for privacy enforcement. At minimum, however, the FCC should promote a privacy framework that’s consistent with the FTC’s approach, by utilizing broad standards and case-by-case enforcement rather than prescriptive, ex ante rules.

TechFreedom President Berin Szoka notes, “The FCC will soon return broadband privacy policing to the FTC, where it belongs, like all online privacy.” Adding that, “Enacting this CRA will simply mean that the FCC will police broadband privacy case-by-case.”

Advertising on the Internet isn’t new, and ISP access to user data is not unique or harmful to consumers. Operating systems, web browsers, social networks, and other services have much more pervasive access to our data. ISPs can’t view the contents of encrypted data, such as HTTPS websites, and privacy-conscious users can adopt services like Tor or a VPN. For the rest of us, commercial use of ISP data can help make these services cheaper, in the same way that Gmail and Facebook are supported by ad revenues. Indeed, our revealed preferences suggest that we care more about price than privacy, and prefer targeted ads to ones that aren’t relevant to us.

Nonetheless, consumer privacy is a serious issue that shouldn’t be dismissed. But the best way to do this is for the FCC to work with the FTC to devise a more consistent and uniform framework, as current FCC Chairman Ajit Pai has plans to do.

We may debate the degree to which all of this should be regulated, but it is Congress’ prerogative to reject agency overreach and support a more uniform approach. Thus, we applaud the Senate for passing this resolution and encourage all members in the House to vote “yes” on H.J. Res. 86.


R Street Institute


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