This time last year, Republicans in Congress were rushing to pass legislation repealing the Federal Communications Commission’s (FCC) online privacy protections that prevented internet service providers like AT&T and Comcast from harvesting and selling internet personal data without explicit permission from their customers.
The move was deeply unpopular, but the GOP reportedly hoped voters would be distracted by the controversy surrounding the attempted repeal of the Affordable Care Act. Democrats were united against the legislation, and President Trump quietly signed it into law.
Just one year later, many of the same lawmakers who voted to repeal the privacy rules were eager to grill Mark Zuckerberg about Facebook’s high-profile privacy problems as the embattled CEO testified before Congress this week. Zuckerberg has built an empire on data gathered from Facebook users and used to sell targeted ads — and the scandals are piling up.
Rep. Marsha Blackburn, a Tennessee Republican who introduced the legislation in the House that repealed the FCC privacy rules, told Zuckerberg that Facebook was “beginning to look like The Truman Show.”
“My constituents in Tennessee want to know that they have a right to privacy,” Blackburn told Zuckerberg during a marathon hearing held by the House Energy and Commerce Committee on Tuesday.
If Blackburn is so concerned about privacy, then why did she push to repeal some of the only online privacy protections on the federal books?
Critics point to Blackburn’s campaign finance records, which show that telecom companies subject to the FCC rules she helped throw out are some of her top donors. The answer also lies in an increasingly partisan debate over net neutrality and how the government should regulate competing companies that create and shape the web.
Perhaps aware of the bad optics surrounding the repeal of the FCC privacy rules, Blackburn introduced her own online privacy protection proposal a few months later. Her bill would require both internet service providers (ISPs) and web services like Facebook to ask users for permission before sharing their sensitive personal information with third parties.
The bill, known as the BROWSER Act, sounds good on paper but includes several caveats that critics say are designed to benefit her backers in the telecom industry, including language that would preempt states from instituting tougher privacy protections on their own.
Tim Karr, a spokesperson for the digital rights group Free Press, said Blackburn is known for designing legislation to benefit companies like Verizon and AT&T that have donated to her campaigns.
“There is a legitimate question about whether Rep. Blackburn is a good faith actor in this space; she has routinely come down in defense of the phone and cable companies at the expense of edge companies like Facebook and Google,” Karr said in an interview.
During Tuesday’s hearing, Blackburn demanded to know whether Zuckerberg would commit to backing her bill. Zuckerberg ducked the question, telling the congresswoman that he wasn’t “directly familiar” with the details of the legislation.
“Let’s get familiar with the details,” Blackburn responded.
Facebook Is Not the Internet
Blackburn’s privacy bill must now compete with several others aimed at big web platforms, but unlike his counterparts in the broadband industry, Zuckerberg is not kicking and screaming in the face of regulation. Zuckerberg was more supportive when Democratic lawmakers brought up plans to roll out privacy regulation, signaling that Facebook is willing to be regulated as long as it can work with the party most aligned with Silicon Valley to shape what those regulations look like.
In fact, he repeatedly told lawmakers during hearings in the House and the Senate that he supports federal privacy regulations if they’re done “right,” and Facebook users across the globe would benefit from upgrades resulting from new privacy rules established in Europe.
Blackburn’s legislation, on the other hand, would ensure that online content platforms like Facebook and Google would never regain a competitive advantage over ISPs that they would have enjoyed under the FCC’s privacy rules.
It all goes back to the 2015 Open Internet order that established much-debated net neutrality rules at the FCC. Just like telephone companies are required to treat calls from other providers equally, the order reclassified ISPs as “common carriers” that must refrain from discriminating against data on their networks. This also allowed the FCC to impose the privacy rules Blackburn helped scrap last year.
Those rules required ISPs to ask customers for permission before selling personal information and data about their browsing habits to third parties, which providers routinely do unless users take initiative to opt-out. Republicans and the telecom industry cried foul, arguing that the rules did not apply to companies like Facebook, which continue to profit from collecting data without asking users to opt-in to targeted advertising schemes first.
Digital rights advocates argue that there is a key difference between an ISP and an “edge provider” like Facebook that justified the FCC’s targeted regulation. You need an ISP to connect to the internet, but once online, signing up for Facebook and sharing data on its network is totally optional.
This explains why Zuckerberg is open to privacy regulations. If users don’t trust Facebook to protect their privacy, they may move on to other platforms. Deleting an account with an ISP and switching to a new provider is not as simple, and in many parts of the country, consumers can only choose between two or three providers — if they have a choice at all.
“You can get by without Facebook; you do suffer an economic consequence if you are a business and it’s important and requires regulation, but the fact is, it’s not on the same level as fundamental communications infrastructure,” said Harold Feld, vice president of the digital rights group Public Knowledge, in an interview.
Zuckerberg was careful to make this distinction between the internet services we pay for and the Facebook services that users get for free. He repeatedly told lawmakers that users “own” their data and can control how information they post on his website is shared.
“I would differentiate between the ISPs, which I consider to be the pipes of the internet, and the apps for platforms on top,” Zuckerberg told a packed Senate hearing Monday, adding that people have different expectations of internet providers and websites, so it would make sense to regulate them differently as well.
Of course, the sheer ubiquity and popularity of Facebook and services like Instagram and WhatsApp have made the products virtual necessities for both individuals and businesses, and Zuckerberg is doing everything he can to convince lawmakers to shrug off antitrust concerns. Still, Karr said Facebook could never be considered a common carrier service.
“There’s a tendency to try to look at edge providers and platforms and ISPs as the same thing, but they are different and those legal definitions are important,” Karr said.
A Widening Partisan Divide
Under the FCC’s net neutrality rules, the government considered the internet more like a public utility that everyone needs to use than an information service like Facebook. The ISPs hated this and asked their allies in the Republican Party to dig them out. Their wish was granted after President Trump won the election and installed a Republican majority at the FCC, which promptly threw out the net neutrality rules late last year.
Democrats are fighting to restore net neutrality and declare ISPs “common carriers” once again. This would benefit edge providers like Facebook and Google, which fear that, without net neutrality, they could be forced to pay ISPs extra to reach customers at priority speeds. It also explains why Blackburn’s legislation would prevent the FCC from reinstating privacy rules for the AT&Ts and Comcasts of the world, leaving the job up to the Federal Trade Commission (FTC) instead.
Blackburn’s plan would let the FTC regulate privacy at web platforms like Facebook as well, and she pitches her bill as a one-size-fits-all solution for the whole internet “ecosystem.” After two days of hearings, it was clear Zuckerberg and many Democrats would rather see different regulations for the companies that hardwire the internet and the companies that build websites and apps. Feld said Blackburn’s bill is clearly backed by the telecom industry.
“The FTC, which doesn’t have a privacy statute and operates pursuant to its general consumer protection statute, is the lowest common denominator on privacy,” said Feld, who added that the FTC must win in court to make enforcement actions. “To the extent that there is a privacy rule, it’s the weakest possible privacy rule.”
Congress could have left the FCC privacy rules for ISPs in place and then figured out what to do about Facebook’s glaring privacy problems, but Republicans scrapped those rules instead, leaving the public with no protections in place while lawmakers engage in an increasingly partisan debate over how to regulate the internet. For that, at least, you can blame the GOP.
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