FCC Commissioner Wants To Ban States From Protecting Consumer Broadband Privacy

Despite a last-ditch effort by the EFF and other consumer and privacy groups, the GOP voted back in March to kill consumer broadband privacy protections1. As we noted several times2, the protections weren’t particularly onerous — simply requiring that ISPs are transparent about what data they’re collecting, who they’re selling it to, and that they provide working opt-out tools. But because many of these large ISPs are busy pushing into the media sector (AT&T’s acquisition of Time Warner being just one example), large ISPs lobbied fiercely to eliminate anything that could dent these future potential revenues. Shortly thereafter, at least eight states and a handful of cities rushed in to fill the void. The city of Seattle, for example, passed a new requirement3 that ISPs receive opt-in permission (the dirtiest phrase imaginable to the marketing industry) before collecting and selling subscriber data. Meanwhile in Maine, a new privacy proposal by State Senator Shenna Bellows is seeing support from Democrats, Republicans, and Independents alike. Bellows cited Congress’ decision to overturn the protections as a motivation for the move4:

“With its reckless vote, Congress put Mainers’ privacy up for sale,” Bellows said. “Most people are rightfully appalled by the idea that their Internet service provider could be watching their every move online and selling their information to the highest bidder.

We owe it to our constituents to protect their privacy.”

This move by the states to do the job Congress wasn’t willing to do has apparently riled the current FCC majority. Speaking at an event at the American Legislation Exchange Council (ALEC), FCC Commissioner Mike O’Rielly said he would be exploring taking some kind of action against states5 that move to pass new broadband privacy protections. O’Rielly’s comments have previously been backed by current FCC boss Ajit Pai, who has also hinted at taking action against the states:

“It is both impractical and very harmful for each state to enact differing and conflicting privacy burdens on broadband providers, many of which serve multiple states, if not the entire country,” said Pai. “If necessary, the FCC should be willing to issue the requisite decision to clarify the jurisdictional aspects of this issue.”

And to be clear, many of these state efforts may cause problems. ISPs have to adapt their business to multiple, discordant protections. In same states, you’re likely to see overreach, as politicians try to craft legislation based on what’s all-too-often a mud-puddle deep understanding of technology. And the patchwork rules also create confusion for consumers, who suddenly find their privacy is (or isn’t) protected depending entirely on whether they’re over the state line — or just how loyal their state representatives are to the charms of large ISP and marketing industry lobbyists. The problem with this complaint, of course, is we wouldn’t be in this situation if Congress and the FCC majority hadn’t mindlessly rushed to kill the FCC’s basic privacy protections in the first place.

It was their choice to ignore the will of the public and push policy solely because AT&T, Verizon, Comcast and Charter thought it would be nice. The resulting fractured policy landscape is their responsibility. There’s also the fact that both Pai and O’Rielly have taken longstanding issue with the FCC’s attempt to thwart ISP-written, state protectionist laws6 that hamstring local competition. Those laws, O’Rielly and Pai have long declared, are sacred and a matter of states’ rights. Odd that when the states defend the anti-competitive fiefdoms enjoyed by giant ISPs, it’s a matter of “states’ rights,” but when those same states move to buck the interests of those same providers and protect consumer privacy, it’s suddenly a capital offense. During his speech, O’Rielly repeatedly vilified support for privacy and net neutrality as the “whims of the misinformed” and “socialism”:

“The members of ALEC can serve an important role as the new Commission seeks to restore free market principles to broadband offerings.

Many of you know all too well of the pressure on us to buckle and acquiesce to the whims of the misinformed screaming for Net Neutrality. You likely face it at your respective statehouses as you debate the various matters before you. The ‘progressive agenda’ being pushed in so many settings is really an effort to use government as a means to redistribute hard earned assets from one group of people to favored interests. Do not let your voices go unheard as Net Neutrality advocates slowly, but surely, seek to drag the U.S. economy toward socialism.”

As we’ve long noted, ISPs (and the politicians paid to love them) have had immense success portraying both privacy rights and net neutrality as partisan issues, therefore encouraging public bickering and stalling any real progress on policy. In reality, however, both concepts have broad, bipartisan support (only baseball and getting screwed repeatedly by Comcast tend to magically bridge this country’s deep, partisan divide). Ultimately, I think we’ll find that mindlessly trampling consumer broadband rights isn’t quite the “red meat for the base” both Pai and O’Rielly believe it is in their own heads.


  1. ^ kill consumer broadband privacy protections (
  2. ^ several times (
  3. ^ requirement (
  4. ^ as a motivation for the move (
  5. ^ taking some kind of action against states (
  6. ^ thwart ISP-written, state protectionist laws (

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