When AT&T, Verizon and Comcast convinced lawmakers to kill broadband consumer privacy rules earlier this year, everybody in this chain of campaign-cash dysfunction got notably more than they bargained for. As with net neutrality, the relatively-modest privacy protections had broad bipartisan consumer support (our collective disdain for Comcast magically bridges the partisan divide). As a result, when the FCC's rules died, more than a dozen states rushed in to craft their own privacy rules that largely mirror the discarded FCC protections.
And while that creates the problem of multiple, potentially discordant (or just plain bad) state laws, that's probably something the broadband industry should have thought about before paying Congress to axe the FCC's privacy rules.
Obviously worried that states would step up and protect consumers where the FCC will not, ISP allies like Marsha Blackburn quickly got to work trying to pass new federal regulation that pretends to address privacy concerns, but is being designed primarily to pre-empt state efforts on this front. FCC boss Ajit Pai, who has previously defended protectionist ISP-written state laws as a "states rights" issue, suddenly turned on a dime here, stating he would be exploring ways to use FCC authority to keep states from protecting consumer privacy in the wake of repealing the FCC's privacy rules.
In California, Assemblyman Ed Chau introduced AB 375 (pdf) earlier this year. AB 375 mirrors the FCC proposal in that it requires that ISPs transparently disclose what private data is being collected and sold, while requiring ISPs provide working opt out tools. In some ways it goes further than the FCC's proposal, in that it specifically bans ISPs from charging broadband subscribers more money to protect their privacy -- something both AT&T and Comcast have flirted with. Needless to say, large ISP lobbyists are desperate to prevent this law from taking root.
The EFF has been documenting this week all of the misleading claims being made by ISP lobbyists as they attempt to scuttle the legislation. The ISPs, with their rich history of violating consumer trust on this subject, are telling the California legislature that privacy protections aren't necessary because ISPs have done nothing wrong. That ignores how Verizon was caught covertly modifying packets to track users around the internet, how ISPs have hijacked search queries for financial gain, how AT&T and Comcast made efforts to charge more for privacy, and how ISPs made efforts to use credit data to offer lower quality customer service to less affluent customers.
Again, these behaviors are all symptoms of a broader disease that nobody in either political party really wants to fix for fear of upsetting powerful campaign contributors: a lack of broadband competition. And while these regulatory patches certainly aren't ideal, until we actually decide to do something about a lack of competition -- these protections are/were the only thing standing between your family and Comcast's ability to nickel and dime the living hell out of you in a rotating array of creative new ways.
The EFF notes that in addition to ignoring obvious, documented history (not even mentioning AT&T's cozy relationship with the NSA), AT&T lobbyists are also pushing the narrative that the state law isn't necessary because FTC authority over broadband providers is plenty good enough moving forward:
"To California’s Legislature, AT&T right now is saying the following:
"AT&T and other major Internet service providers have committed to legally enforceable Privacy Principles that are consistent with the privacy framework developed by the FTC over the past twenty years."
In essence, there is no need to pass a state law because the Federal Trade Commission can enforce the law on us.
But we've noted already how AT&T lawyers are currently suing the FTC to try and ensure the agency has no authority over AT&T businesses whatsoever. We've also noted how this is all part of an ISP lobbying plan to gut FCC authority over broadband providers by rolling back Title II (net neutrality being just a small part of this), then shovel all remaining authority to an FTC that lacks the resources, authority, or funding to police duopoly ISP behavior. The goal is really quite simple: little to no actual oversight of some of the least competitive and least-liked companies in America.
And, as the death of privacy and looming death of net neutrality rules can attest, so far this plan is going swimmingly for ISPs. Except for the dozen or so states actually interested in standing up for their citizens' privacy rights.
While the EFF had previously warned that killing the FCC rules would cause a wave of less-ideal state-level laws, they're supporting AB 375 as they feel it's a good template for other states to follow for some consistency on this front:
"EFF supports states responding to the demands of the public for privacy protections, particularly in light of Congress having failed to do so. It has become even more important as the Federal Communications Commission itself is actively undermining consumer protections on behalf of Comcast, AT&T, and Verizon. It should surprise no one that state legislators who care about consumer privacy will act and ultimately having as many state laws on the books as possible to protect personal information is a superior outcome to having no clear protections at all.
And if A.B. 375 becomes law, we hope it would serve as the model for states across the country to avoid a patchwork problem, but again this problem was created by the ISP lobby repealing the federal rules in the first place."
So far ISP efforts to derail California's proposal (including having former FTC boss Jon Leibowitz pen misleading op/eds lobbying for ISPs against privacy protections) have seen mixed results, with the bill passing the first of several hurdles in the California legislature earlier this week. But again, California's fight is far from over. And it's just a microcosm of ISP attempts to remove already fairly-tepid oversight of the telecom sector, under the pretense that zero accountability for uncompetitive duopolists like AT&T and Comcast somehow magically results in connectivity Utopia.