Google and Facebook, as well as other Silicon Valley companies, are actively trying to stop a proposed law that would force them to acquire consent from users before collecting their personal information. And they are throwing their bank accounts at it.
The “Browser Act,” introduced May 18 by Republican Rep. Marsha Blackburn of Tennessee, mandates that people must explicitly give permission to internet service providers (ISPs) and websites wanting to use their browsing history and other data for business purposes.
“I think it is necessary to get our consumers the strongest toolbox possible to allow them to control their virtual presence,” Blackburn told The Daily Caller News Foundation (TheDCNF) in an interview. “Individuals in the physical world have the opportunity to hold personal information private and they should have that same opportunity in the virtual space.”
The legislation’s primary focus is sectored into two categories. User information considered sensitive would be subjected to an opt-in approval system, meaning the data would only be permitted for company use if the person gives clear approval. In contrast, user information deemed non-sensitive would be subjected to an opt-out approval system in which data is automatically permitted for business operations unless notified otherwise.
Blackburn said she came up with this arrangement after talking with both members of the affected industry and consumers.
“What I would hear from people was ‘Hey, you know there are some people that I want to have an online relationship with. I do business with them, I want them to have some of my information. There are other people I don’t want to have any of my information,’” Blackburn explained. “So I think this is a way — if we do opt-in on sensitive information — for consumers to have more control of their virtual presence.”
The Internet Association, a political lobbying group representing tech giants like Facebook, Google and Amazon, call the bill misguided.
“We, along with a broad swath of the American economy, are aware of the BROWSER Act and are tracking the proposal,” Noah Theran, vice president of public affairs and communication of the Internet Association, said in an official statement. “This bill has the potential to upend the consumer experience online and stifle innovation.”
Blackburn argues that another important distinction must be made along with the opt-in and opt-out systems, specifically between the jurisdictional power of government agencies.
Enabled by the Congressional Review Act, the congresswoman was one of the 265 members of Congress who voted to reverse a privacy rule implemented by the Federal Communications Commission (FCC) under the Obama administration.
Like the Browser Act, the rule was going to require ISPs to get customers’ consent before sharing their browsing history with other companies. But unlike the Browser Act, the Obama-era FCC rule didn’t include companies like Facebook and Google (also known as edge providers).
Blackburn said she supported repeal of the privacy mandate because “we should have one regulator with one set of standards and rules for the online universe,” adding that the Federal Trade Commission (FTC) is “our nation’s historical enforcement and judgement body when it comes to privacy issues in the commercial space.”
Scott Cleland, chairman of NetCompetition, a pro-competition e-forum, who served in the George H. W. Bush Administration, says such differentiation is critical.
“The BROWSER Act corrects the flaw in the FCC’s broadband rules that created conflicting FCC and FTC privacy regimes by offering one uniform and consistent law to empower users to have control over their privacy,” Cleland told TheDCNF.
Like Cleland, FCC Chairman Ajit Pai has argued several times that the FTC should be the enforcer of such privacy rules as it always was prior to 2015.
Some organizations, like the Electronic Frontier Foundation (EFF), contend that websites (including Facebook and Google) should not necessarily be playing by the same rules as other companies.
The bill “comes up short on a handful of fronts such as preempting state enforcement of consumer privacy and treating websites as if they are the same as cable and telephone companies despite clear differences in the market and choice for consumers,” Ernesto Falcon, legislative counsel for the EFF, told TheDCNF.
The Internet Association agrees to some degree.
“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,” Theran continued in his statement.
Google and Facebook’s opposition to the Browser Act — specifically not being allowed to automatically sell “customer web browsing history” — isn’t very surprising since the two companies combined account for roughly 90 percent of the growth in new advertising revenue. Google is expected to make $72.69 billion in ad revenues in 2017, while Facebook is estimated to make $33.76 billion, according to market research company eMarketer. Advertisements, specifically highly targeted and tailored ads, are highly dependent on user data, like personal preferences deciphered from web browsing history and other online activity. (Users of Facebook, for example, presumably notice that the particular product they were just searching for on another website often appear in an ad on the social media’s platform).
Aside from administrative intricacies, there are other factors that could potentially, or at least partially, explain the EFF’s disapproval of the Browser Act. There are at least seven people who have worked for both Google and the EFF in some respect, whether at separate points in their careers or concurrently.
Brad Templeton, former chairman of the EFF, admitted on a blog post that he has “done work for Google advising on software design.”
“I’m a fan of Google, and have been friends with Google’s management since they started the company,” Templeton wrote with some disconcertion, since he was somewhat being critical of the tech conglomerate in his article.
Longtime entrepreneur Joe Kraus was an EFF board member for approximately seven years while also serving as an executive at Google, according to his own LinkedIn page.
Fred von Lohmann, who now works as legal director of copyright for Google, was employed as the EFF’s senior staff attorney for more than eight years.
Dan Auerbach went from working at Google for four years to working at the EFF for 3 years.
Chris Palmer, currently the senior software engineer at Google, had a different trajectory, going from Google to the EFF and then back to Google.
While a “revolving door” relationship, of course, does not inherently imply collusion on matters of policy, it does signify a sort of incestuous relationship between the two entities. While the EFF is generally aggressive on Internet privacy, it seems less so when it comes to Facebook and Google snooping and selling browser histories.
Even though the EFF is technically a 501(c)(3) registered nonprofit with a main focus on digital privacy rights, it’s choice to advocate against privacy protections here raises some questions — like if the EFF is yielding to an ally or if there are legitimate policy nuances that caused it to be for privacy protections just months ago, but against more expansive legislation now.
Representatives of several other organizations, including some similar to the EFF, like the Center for Democracy and Technology and TechFreedom, declined to provide TheDCNF with their analysis of Blackburn’s pending legislation because they said they need more time to look into it.
Facebook and Google (via the Internet Association) may be against Blackburn’s Browser Act, but AT&T, another highly profitable corporation, applauds it for providing a “comprehensive and uniform privacy framework that applies across the entire Internet ecosystem” and not just telecommunications company like itself.
“We support Chairwoman Blackburn for moving the discussion in that direction and we look forward to working with her as this legislation moves forward,” an AT&T spokesperson told TheDCNF.
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