Leonard Lance’s BROWSER Act: A Giveaway to Internet Companies; Not a Privacy Protection Bill

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Zuckerberg, mobbed

Rarely is a discussion of user data and privacy rights met with anything other than glazed over eyes and bored stares. This all changed, however, when Mark Zuckerberg testified before Congress about how its users’ data is used—and misused—by entities outside the company. The media frenzy surrounding the event was palpable.

New Jersey’s Leonard Lance (NJ-07) was one of the lucky few to interrogate Mr. Zuckerberg on the issue, as he holds the position as Vice-Chair of the Communications and Technology subcommittee of the House Energy and Commerce Committee. With cameras rolling, Lance touted ‘The Balancing the Rights of Web Surfers Equally and Responsibly (BROWSER) Act’ as a great solution to privacy concerns and asked Zuckerberg to endorse it. Lance is one of 7 co-sponsors signed on to Tennessee Republican Marsha Blackburn’s bill; all Republicans, including Frank Lo Biondo (R-NJ), except for conservative Dem Rep. Dan Lipinski.

Although Rep. Lance wants people to think the BROWSER Act is a victory for privacy, it is actually a Trojan horse that will further cement the ability of Internet Service Providers (ISPs) to collect and sell sensitive information of their users, guide the currently free services we enjoy online to become paid subscription services, and torpedo any effort by states to put the brakes on this whole nightmare.

On its face, this bill seems like a great solution to protecting the privacy rights of internet users, as it gives users significantly more control over which companies can use their data. It sorts data into “sensitive” and “non-sensitive” categories and would require explicit permission from a user before a website (like Facebook) or an ISP (like Comcast or AT&T) could compile, use, and sell this data.

But this is where things start to go off the rails.

The bill does nothing to limit the ability of ISPs to incentivize users to give the OK for the company to use their sensitive data. This means that, while Comcast or AT&T couldn’t outright deny selling you internet or phone service unless you agree to their terms; they could offer you a deep discount on your bill if you were to agree to sign away your privacy.

This idea of a financial incentive program, designed to lure users into signing away their data rights, is exactly the situation that Obama era regulations (that were recently repealed) hoped to control. And this bill effectively codifies the problem into law.

Furthermore, this incentive structure almost exclusively benefits ISPs and not websites because most data-driven web services like Facebook or Google are free services, meaning the only incentive they could offer a user is access to some additional service or new feature—which would be explicitly forbidden in Lance’s bill.

The overall advantage goes to ISPs, and the net result will be pressure on website based services like Facebook to change their business model to a paid subscription based system. This would allow them to make up for lost advertisement targeting revenue and allow them to offer subscription discounts to incentivize data sharing from its users like ISPs.

This turns privacy into a commodity rather than a right. People who don’t see the need for a discount on their cable bill, or their monthly Facebook bill, are going to be the ones that can literally afford to keep their sensitive information private. For the rest of users, struggling to make ends meet as it is, they will be forced to try and make an evaluation: Is the release of their sensitive personal data worth the money saved on their bills?

Thankfully, New Jersey and several other states have stepped in to try and prevent this sort of abusive behavior from ISPs and websites. They are enacting strong privacy requirements for ISPs to follow or else face having their ability to operate in the state revoked. These laws are the last line of defense to safeguard our data.

Surely, the only way this nightmare scenario could actually occur is if all the state-level privacy laws were suddenly repealed.

And this is exactly what the BROWSER Act does.

Lance’s bill contains an explicit clause forbidding any state from enacting stronger consumer protections over ISPs, and bars states from enforcing privacy laws already on the books. Buried in the very last section of the bill, it states:

“No State or political subdivision of a State shall, with respect to a provider of a covered service subject to this Act, adopt, maintain, enforce, or impose or continue in effect any law, rule, regulation, duty, requirement, standard, or other provision having the force and effect of law relating to or with respect to the privacy of user information.”

The meaning of this section is painfully clear. States like New Jersey would have their data protection laws completely overturned. Any attempt by states to stop ISPs from being able to collect and sell your browsing history would be immediately shut down.

The people of New Jersey have already spoken loud and clear on this issue, and overwhelmingly, the people support laws preventing an ISP from being able to collect and sell personal browsing histories.

After Leonard Lance voted to repeal previous protections stopping ISPs from collecting browsing histories, states, including New Jersey, began taking steps to create state laws to protect consumer privacy. Representative Leonard Lance would happily see these state laws completely negated.

Data and privacy in the digital age is a complex subject. But the idea that people should have control over their own personal information is a simple one. Privacy is a right. It should not matter if a user is wealthy or poor. One’s use of the internet and the many vital services it provides should not be conditioned on giving up this foundational right.

By supporting the BROWSER Act, Leonard Lance and other Representatives across the country are not doing what is best for consumers. They are giving in to special interests, and offering up the privacy of their constituents as the next big commodity to be bought and sold. The coming election in November is projected to be difficult for the Republican incumbent, and if he would like to remain New Jersey’s Representative of the 7th district, Lance must drop his support of the BROWSER Act. Otherwise, voters might just drop their support of him.

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