The pro-privacy Browser Act has re-appeared in US Congress. But why does everyone except right-wing trolls hate it?

Martha Blackburn's bill is everything wrong with 2019 in 13 pages

QUIZZICAL LOOK

Comment A bi-partisan law bill that promises to give internet users far greater control over their privacy made another appearance in US Congress on Thursday.

The proposed law would require ISPs as well as social media giants to get user consent before collecting and selling their data, and force those same companies to continue to supply their services even if a user refuses to provide consent.

The bill's main sponsor appeared in the Senate to note the progress that has been made with the legislation and to flag the creation of a new tech task force that will "find answers to the issues of privacy and data security" when it comes to internet companies.

All of which is exactly what lawmakers, consumer advocates, privacy groups and the media have been arguing for months is needed. So why does everyone hate the Browser Act?

One unfortunate answer lies in who is proposing the new law and the media outlet that is aggressively backing it: Marsha Blackburn (R-TN) and Breitbart respectively.

It is especially unusual to see Senator Blackburn pushing a law that enhances internet users' privacy because she has been one of the strongest voices in opposition to that very goal.

She not only opposed FCC rules that would have required the exact-same privacy protecting requirements but authored a bill (when she was in the House) that would have permanently prevented the FCC from adding such protections in future.

She is an active advocate for opening up Section 230 of the Communications Decency Act that protects internet platforms from being sued for their users' actions. And she was the point person for claims that social media companies were censoring conservative speech: she created a video that broke Twitter's terms of use and then embarked on a full-blown media campaign when the company blocked it.

Was it a deliberate effort to push a pre-decided angle? No, of course not. It just looked like that. Exactly like that in fact.

Brain-fart

Marsha Blackburn and her views on the internet are everything that is wrong with 2019: she seemingly spends a big chunk of her time developing ways to get press attention and uses that attention to slam the press. She builds furious but temporary policy platforms based on little more than presidential brain-farts.

There is always, but always, a terrible enemy she is fighting against, and facts rarely get in the way of that advocacy. For the past few weeks Google, Snapchat and any other social media company have been the focus of that ire. But if Donald Trump slammed dog food tomorrow, she'd be first out there calling for Purina's CEO to step down while announcing the Defend Our Great Dogs (DOG) Act.

It is no coincidence that Blackburn announced her new tech task force last week during a White House's "social media summit" that was little more than an effort to promote right-wing voices whose social media profiles have been blocked for offensive content. With the issue temporarily in the president's cranium, Blackburn rediscovered her enthusiasm for her privacy act that isn't.

Senator Blackburn also has gaslighting down to a fine art. While fiercely opposing net neutrality both in Congress and in print, she started promoting new legislation claiming it will defend net neutrality and mocking others who "claim net neutrality doesn't exist."

As for alt-right outlet Breitbart, which has repeatedly and enthusiastically backed Blackburn's Browser Act and gone out of its way to ignore the criticism leveled at it, well, the less said the better. But the fact that it is uncritically writing about the proposed law is evidence in itself that something is fishy.

Problems

But enough of lambasting Blackburn: what exactly is the problem with legislation that provides internet users with some additional degree of privacy?

Well, the Association of National Advertisers (ANA) hates it because it would make the process for gathering and using user data opt-in. This is a critical distinction and one that privacy advocates are fully in favor of: companies would be required to get users to say Yes to having their information stored, rather than gather the information and require them to figure out how to say No.

The Browser Act's opt-in approach is "vague and confusing" according to the ANA and will "bombard consumers with annoying consent notices." You won't be surprised to hear that the ANA has created its own "privacy self-regulatory program to assure and enhance this type of oversight."

Confused? So is the ANA. "The advertising community has always had a very good working relationship with Chairman Blackburn," it noted in a post.

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"We agree with her that the FTC should have regulatory primacy in the privacy arena for both ISPs and edge providers. We agree that there should be federal preemption in regard to privacy regulation. We will be reaching out to the Chairman and her staff to express our concerns about the definition of 'sensitive user information' in her bill and in order to assist in trying to find a better and more balanced approach to this critical issue."

Tech industry lobbyists NetChoice hate the Browser Act for the same reason. And somewhat bizarrely have made the exact same argument as their opponents when criticizing it: "On its face, the Browser Act seems like pro-consumer privacy legislation. But it’s actually an awful deal for Americans who’ve come to depend on free online content and services."

Flummoxed

So how do you square the circle between a senator whose thoughts, speeches and actions clearly point to an anti-privacy approach and new legislation that appears to be the complete opposite?

The Boston Globe was flummoxed. "Internet privacy has a new best friend, and it’s the last person you’d expect," began an article on the Browser Act. Its only explanation for the apparent about-face was blowback from her killing off the FCC privacy rules. "Eliminating the FCC rules caused a ferocious backlash that may go a long way toward explaining Blackburn’s change of heart," it reported.

But the truth is much more 2019 than an old-fashioned change of heart. The proposed law is not intended to make things better, or fix a problem, or find a compromise. Instead its purpose is three-fold: one, stop a different law from being implemented; two, introduce a law that looks like one thing but contains sufficient purposeful loopholes that it actually does the opposite; and third, put the author in the spotlight.

"The problem with the Browser Act is that it constitutes a 'race to the bottom' for privacy," notes telecoms expert Harold Feld of Public Knowledge. "Why not just amend Section 222 to apply to information services?"

More precise criticism comes from a Silicon Valley representative, Anna Eshoo (D-CA) who pointed out in a hearing last month that the Browser Act contains no rulemaking authority, contains no civil penalties and pre-empts state laws.

The state law she was thinking of comes from California and has its own fascinating history. Currently big tech companies are doing everything in their power to undermine that law but their preference is to kill it altogether by getting the federal government to approve a law that overrides it. The only problem of course is that Democrats won't back a law that clearly undermines privacy protections elsewhere. So the only solution is to knowingly create a flawed law to act as a kind of Trojan Horse.

In short, the Browser Act is the epitome of legislative efforts in 2019 as well as the presidency of Donald Trump. It is an empty shell that alternatively confuses and infuriates both sides. It is deliberately promoted as one thing while doing something else entirely. And it has little or no chance of actually achieving anything beyond garnering lots of attention for the person pushing it.

The best solution would be to ignore it altogether. Here's hoping. ®

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