FCC Broadband Privacy Rules Nullified

The president has signed into law a Congressional Resolution of Disapproval revoking the FCC’s controversial broadband privacy rule, whose implementation (as we reported) had been paused by the FCC. The broadband privacy rule was adopted in October 2016, and had it taken effect, would have required internet service providers, inter alia, to get a user’s opt-in consent to use and share “sensitive” information, such as web browsing history, financial information, and children’s information, among others. The Rule was criticized for this opt-in provision, which was viewed as placing greater requirements on ISPs than companies who fell under the FTC’s jurisdiction.

The proposed Rules arose after FCC had tried in 2015 to reclassified ISPs as common carriers and thus for the most part exempt from the FTC authority. Now, however, in a recent joint op ed piece in the Washington Post, the FTC and FCC chairs indicated that they will be working to “restore FTC’s authority” over ISPs’ privacy practices.

TIP: While there has been considerable press over this development, the result leaves ISPs in essentially the same position as previously, namely under the FTC’s notice and (opt-out) choice regime.