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BROWSER Act Aims to Replace Invalidated FCC Privacy Rules: Balancing Rights of Web Surfers Equally and Responsibly

US Representative Marsha Blackburn (R-Tenn.) recently introduced the Balancing the Rights of Web Surfers Equally and Responsibly (BROWSER) Act (the Bill), under which the Federal Trade Commission (FTC) would regain jurisdiction over online privacy regulation. The Bill would require that both internet service providers (ISPs) and online companies give consumers opt-in or opt-out rights for sharing certain sensitive consumer data, including browsing history, with third parties.

Rep. Blackburn was part of the effort to invalidate the Obama-era Federal Communications Commission (FCC) privacy and data security rules for ISPs. Rep. Blackburn stated that the rules under the FCC “created confusion by establishing two privacy regulators,” and unfairly focused on ISPs despite the fact that edge providers such as Google and Facebook collect just as much data as, if not more than, ISPs. The rules under the FCC had required ISPs to obtain affirmative opt-in consent to use and share sensitive information, including browsing history and geolocation.

The FCC’s authority over ISPs stemmed from the 2015 classification of ISPs as Title II common carriers, which, for the most part, exempted ISPs from FTC jurisdiction. Rep. Blackburn filed the Bill on the same day that the FCC voted on an initiative to reverse the Title II classification of ISPs.

The Bill wouldrequire providers of broadband internet access service and edge services to clearly and conspicuously notify users of the privacy policies of such providers [and] 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 mirrors the invalidated FCC rules with respect to ISPs, but extends the rules to edge providers, which were not previously subject to the FCC rules.

The Bill already has companies and industry groups taking sides. AT&T has supported the Bill, while the Internet Association issued a statement saying, “The bill has the potential to upend the consumer experience online and stifle innovation. Policymakers must recognize that websites and apps continue to be under strict FTC privacy enforcement and are not in an enforcement gap, unlike other stakeholders in the ecosystem.”

The Bill was referred to the House Committee on Energy and Commerce on May 18, 2017.

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About this Author

Emily Lowe, Corporate finance Attorney, Morgan Lewis
Of Counsel

Emily R. Lowe represents clients in commercial transactions, with a focus on the acquisition, use, protection, development, and commercialization of technology and biotechnology. Emily helps domestic and international companies commercialize their products through various commercial vehicles, including manufacturing and supply agreements and distribution strategies, and development and licensing agreements.

Katherine B. O'Keefe, Morgan Lewis, Technology Lawyer

Katherine B. O’Keefe is part of a team that handles critical commercial transactions that enable our clients to run their business operations effectively. The team is focused on technology transactions, including licensing, services, and alliance deals that involve emerging technologies such as cloud computing, software as a service (SaaS), and data analytics. Our technology, outsourcing, and commercial transactions lawyers assist clients in managing their online presence, from website development, hosting, and maintenance; to privacy and use policies; to data breach and retention issues.