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A new privacy bill in Congress has some companies preparing for a long political fight

Congress scrapped the government’s last privacy rules, and one of the leaders behind that push has another idea in mind.

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Rep. Marsha Blackburn
Chip Somodevilla / Getty

A new push in the U.S. Congress to subject AT&T, Comcast*, Facebook and Google to more online privacy oversight has tech giants, internet providers and consumer groups all preparing for a political fight.

The effort is the brainchild of Rep. Marsha Blackburn, a Republican lawmaker from Tennessee; her bill, dubbed the Browser Act, seeks to ensure consumers have a say before a broadband company, search engine, social network or other website can sell their sensitive information, including their web-browsing histories, to advertisers.

If it all feels like a bit of deja vu, that’s because it is: It was Blackburn, after all, who led Congress on a campaign this year to quash similar privacy protections put in place under former President Barack Obama.

At the time, Blackburn argued that the Federal Communications Commission — then under Democrats’ control — had erred in putting forward rules that required only internet providers, like Charter and Verizon, to obtain customers’ consent. To that end, her new bill targets the full spectrum of the internet, including web giants like Amazon and Google. In Blackburn’s words, it moves the government “to a posture where we have one regulator, one set of rules [and] everybody knows who’s in charge,” she told Recode.

But the Tennessee lawmaker’s effort hasn’t won any allies among privacy-conscious consumer groups, like the American Civil Liberties Union, which doubt Blackburn’s methods. And her bill has already prompted a whole new round of fierce lobbying by tech and telecom giants, which don’t see the need for any new regulation at all.

“I think that, in concept, the idea that there should be stronger privacy standards for edge providers and internet service providers is right,” said Neema Singh Guliani, the legislative counsel at the ACLU.

But Blackburn, she added, should have gone about it differently. “The way to do it was not ... [through] gutting the FCC’s rules; the way to do it was actively working on a replacement.”

It’s been a difficult month for Republican lawmakers since they voted to scrap the Obama administration’s privacy protections. Some members of Congress have faced a barrage of criticism on social media; others have fielded tough questions from concerned constituents at their town halls. Liberal groups have even taken special aim at Blackburn, erecting billboards in her home state that accused the lawmaker of having “betrayed” her voters.

In an interview this week, Blackburn stressed she’s been working on her proposal, quietly, for some time — before the public outcry over lawmakers’ repeal vote last month. And she said much of that opposition to the move by Congress to scrap the Obama-era FCC’s work had been “misinformed” from the start.

“Most of them were told privacy changed dramatically,” Blackburn said. In reality, she said, the rules requiring internet providers to seek customers’ consent before selling some of their data weren’t scheduled to take effect until the end of 2017.

“What all of that storm after the privacy [vote] did do was to turn the focus to the entities that are doing extensive data mining, and fill your browser page with pop-ups and your inbox, your junk mail, with all of this spam, and it helps people to realize where that activity is being generated,” the congressman continued.

In its current form, Blackburn’s bill has a few parts. Both tech and telecom companies would have to seek consumers’ permission before selling their sensitive information, from browsing histories to precise geolocation data. In the event a consumer said they did not want their information shared, however, a company couldn’t deny them service. The bill also puts a halt to any further action at the FCC related to online privacy, and it preempts similar efforts by state governments.

For now, it hasn’t been scheduled for a hearing. It has no complementary version in the Senate. It has no Democratic co-sponsors. And it may never come close to a vote in Congress. If it does, though, it could deliver at least a small win to the telecom industry, seeing as it would halt efforts in about a dozen states to implement their own privacy rules in the aftermath of the House’s repeal vote.

At the moment, though, companies like Comcast and Verizon are staying silent on Blackburn’s bill. For months, they had argued — through one of their lobbying groups, the 21st Century Privacy Coalition — about the need for a “uniform” approach to regulation, which is code, at times, for rules that took aim at the likes of Facebook and Google. But the coalition also declined comment for this story. (Update, 3:48p.m. ET) Only AT&T, citing the need for a “uniform privacy framework,” praised Blackburn explicitly “for moving the discussion in that direction.”

“We’ve heard a lot of conflicting statements,” charged the ACLU’s Guliani. “At the state level, you hear a lot of opposition from the [telecom] industry talking about a patchwork for legislation. [But] there was a federal standard and they were critical of that.”

The ACLU and other consumer groups — longtime advocates for comprehensive online privacy regulation in the nation’s capital — similarly aren’t sold on the effort. “We're looking carefully at the bill, and we have a lot of questions about it that would need to be answered before we could consider taking a position,” said Natasha Duarte, a privacy-focused policy analyst at the Center for Democracy and Technology.

Many in Silicon Valley, however, are bristling openly at Blackburn’s bill. The leading trade group for web giants, the Internet Association, said this week the proposal “has the potential to upend the consumer experience online and stifle innovation.” The organization represents Facebook, Google, Twitter and other top companies, and it plans to take its concerns directly to Blackburn’s office at a private meeting this week, according to a source familiar with the matter. Google also has a more general meeting on the books, a source said, and the bill is expected to come up.

The country’s leading advertising networks, meanwhile, similarly aren’t sure about Blackburn’s approach. The Interactive Advertising Bureau, one of the industry’s biggest voices in Washington, said the Browser Act “could significantly impact much of the trillion dollars in GDP [that] the ad-supported internet generates, taking millions of jobs along with it.”

For her part, Blackburn said she’s only getting started in meeting with her phalanx of critics. And she isn’t deterred by the swell of opposition — the sort of intense lobbying on all sides that has imperiled any effort by Congress, the FCC or other parts of government to tackle online privacy.

The debate has “matured in the mind of the public, I think it has matured in the minds of legislators,” she said, “and now it is time for us to move forward and put something in statute.”

* Comcast, via its NBCU unit, is a minority investor in Vox Media, which owns this site.

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