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House bill would create new online privacy rules under FTC jurisdiction

After leading the charge to repeal the Federal Communications Commission’s (FCC) online privacy rules, U.S. Rep. Marsha Blackburn (R-Tenn.) has introduced the Balancing the Rights of Web Surfers Equally and Responsibly Act (the “Browser Act”), a bill that would require internet service providers and online companies to receive opt-in or opt-out options for sharing “sensitive user information” while establishing the Federal Trade Commission (FTC) as the sole online privacy regulatory. According to Blackburn, who chairs the House Energy and Commerce Subcommittee on Communications and Technology, the FCC’s rules “created confusion by establishing two privacy regulators” and the Browser Act would create “a level and fair privacy playing field by bringing all entities that collect and sell the personal data of individuals under the same rules.”

According to language in the bill, the Browser Act would “require providers of broadband internet access service and edge services . . . to give users opt-in or opt-out approval rights with respect to the use of, disclosure of[] and access to user information collected by such providers based on the level of sensitivity of such information, and for other purposes[.]” This approach would require the FTC, which would be vested with exclusive regulatory jurisdiction over online privacy, to adopt the FCC’s now-repealed opt-in approach to customer consent. But, according to some experts, the bill would take those rules further than they went before. This is because the bill would apply to both internet service providers and so-called “edge providers” like Google and Facebook. Edge providers were not covered by the FCC’s previous rules.

There remains uncertainty about the implementation of the rules should the Browser Act pass in the House and Senate, however. Although the text of the bill says it applies to broadband providers, they are largely exempt from FTC jurisdiction as common carriers under Title II of the Communications Act, a classification established under the FCC’s 2015 Open Internet Order. If the FTC’s new acting chairman, Maureen Ohlhausen, gets her way and the Open Internet Order is undone, the problems of implementation may be avoided.

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