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Opponents Hope to Mislead California’s Legislators Before They Vote on Broadband Privacy Next Week

DEEPLINKS BLOG
July 12, 2017

The large broadband providers and their associations who spent millions in Washington, D.C. to repeal broadband privacy just a few months ago in Congress are fighting to protect their victory in California. They are throwing every superficial argument against A.B. 375 in hopes to confuse California’s legislature enough to give them a pass despite an overwhelming 83% of the American public demanding a response to the Congressional Review Act repeal of their privacy rights.

EFF obtained copies of their letters and feel it is vitally important California’s elected officials know that the industry is unloading a plethora of misleading arguments, some of which they themselves are actively contradicting in other forums. Here are some examples of their attempt to have it both ways—where they repealed our privacy rights in D.C. yet express shock and dismay that state legislatures would respond to the public’s demands.

We Warned ISPs That Repealing the Federal Protections Would Result in a Patchwork of State by State Laws

The irony in the very companies who spent millions of dollars lobbying in DC to repeal our federal broadband privacy rights are now fighting state attempts to protect consumers because they supposedly prefer a federal rule.  It is not lost on EFF that each state having to engage in broadband privacy individually without a federal floor is not ideal, we have said as much during the fight in DC. While California’s A.B. 375 represents model legislation EFF supports, not every state will enact the same law and some states may leave their citizens completely unprotected. That is a far cry from where we were in 2016 before Congress repealed our broadband privacy rights, and it is because of companies like Comcast, AT&T, and Verizon that we have arrived at this point.

We fought hard to stop Congress from repealing our broadband privacy rights. Tens of thousands of Americans picked up the phone to demand Congress vote no on the broadband privacy repeal but they were ignored. Today 83% of the public, regardless of political affiliation, all believe that ISPs must secure their permission first before being allowed to sell their personal data. In other words, more than 8 out of 10 Americans support what A.B. 375 seeks to codify into law.

Despite our repeated warnings to the industry and Congress that eliminating a uniform federal framework that protected personal information will result in states responding to protect their citizens, they pushed ahead and now find themselves on defense across the country.

EFF supports states responding to the demands of the public for privacy protections, particularly in light of Congress having failed to do so. It has become even more important as the Federal Communications Commission itself is actively undermining consumer protections on behalf of Comcast, AT&T, and Verizon. It should surprise no one that state legislators who care about consumer privacy will act and ultimately having as many state laws on the books as possible to protect personal information is a superior outcome to having no clear protections at all.  

And if A.B. 375 becomes law, we hope it would serve as the model for states across the country to avoid a patchwork problem, but again this problem was created by the ISP lobby repealing the federal rules in the first place.

AT&T is a Leader in Contradicting Itself

To California’s Legislature, AT&T right now is saying the following:

“AT&T and other major Internet service providers have committed to legally enforceable Privacy Principles that are consistent with the privacy framework developed by the FTC over the past twenty years.”

In essence, there is no need to pass a state law because the Federal Trade Commission can enforce the law on us. But what exactly is AT&T saying about the FTC’s enforcement power in the courts?

Source: AT&T’s 2016 Brief in FTC vs AT&T Mobility

That is right. They are arguing that the FTC has no legal enforcement power over them. They are making that argument right now in the Ninth Circuit Court of Appeals, which means if they win there a second time (the case is on en banc appeal) then California will have no Federal Trade Commission enforcer on privacy.

On other fronts AT&T and others are arguing that the bill is unnecessary because the FCC’s powers remain perfectly intact after the Congressional Review Act repeal.

“The bill is not needed. The FCC retains statutory authority to enforce consumer privacy protections with respect to Internet service providers.”  - AT&T

"We want to assure you that the action taken by Congress earlier this year has changed nothing for consumers." -CompTIA, TechNet, Bay Area Council

We have explained in detail exactly what Congress did when it invoked the Congressional Review Act repeal of our broadband privacy rights. Ironically, last week AT&T agreed with us when their association US Telecom petitioned the FCC to help clear up the mess created by the CRA broadband privacy repeal because it has also muddied up the waters for their efforts to combat robocalls. In essence, they do not know their legal rights to sharing telephone customer information in that instance just like customers now no longer have clear legal rights to their broadband privacy. It is also worth noting that the FCC that is on course now to end the legal obligations of AT&T to preserve an open Internet and protect privacy.

“We Don’t Engage in That Kind of Activity”

This is the biggest whopper they are spreading here in Sacramento because anyone who takes the time to look up the history of ISP conduct will quickly find out that they have been trying to profit off their customers’ personal information for years. The problem for them has been the law got in the way (until recently) or elected officials put political pressure on ISPs to change their plans.

In 2008, Charter play tested the idea of recording everything you do on the Internet and packaging it into profiles by using Deep Packet Inspection technology that was capable of detailed monitoring of your activity. The bipartisan political response from Congress was fierce and Charter quickly backed down from its plans. It is worth noting that cable broadband services were not clearly covered under the Communications Act’s privacy obligations until the 2015 Open Internet Order.

We know as of 2015 telecom carriers work with Ad Adage to “ingest” data from cellphones close to 300 times a day every day across 20 to 25 million mobile subscribers (we aren’t told which mobile telephone companies participate in this practice, they keep that a secret). That data is used to inform retailers about customer browsing info, geolocation, and demographic data.

We know in 2011 ISPs engaged in search hijacking where your Internet search queries were monitored in order to be rerouted in coordination with a company called Paxfire.

We know AT&T was inserting ads into the traffic of people who use their wifi hotspots in airports. Even small rural ISPs have engaged in ad injection to advertise on behalf of third parties.

We know AT&T, Sprint, and T-Mobile preinstalled “Carrier IQ” on their phones, which gave them the capability to track everything you do, from what websites you visit to what applications you use. It took a class action lawsuit for the carriers to begin backing down from this idea.

And lastly, we know in 2014 Verizon tagged every one of their mobile customers’ HTTP connections with a semi permanent super-cookie, and used those super-cookies to enable third parties such as advertisers to target individual customers. Not only that, but Verizon’s super-cookie also allowed unaffiliated third parties to track you, no matter what steps you took to preserve your privacy. And worst of all, AT&T was going to follow suit to get in on the action but quickly retreated after Verizon got into legal trouble with the federal government.

Pretending a Straight Forward and Widely Accepted Definition of Broadband is Untested

In several opposition letters the opponents assert the definition of “Internet access service” may result in any Internet business suddenly becoming affected by the legislation. This is a false reading of the definition in the bill and likely an attempt to stall the legislation by pretending we have not been living with these definitions for seven years.  

A.B. 375’s definition of ISPs mirrors the Federal Communication Commission’s definition of broadband service, which has been on the books since 2010 to institute Network Neutrality. The Public Utilities Code (the underlying statute for the Public Utilities Commission) has connected the definition of broadband to the FCC’s definition for the last 11 years.

A.B. 375 defines ISPs as follows:

“Internet service provider” means a person or entity engaged in the provision of Internet access service, but only to the extent that the person or entity is providing Internet access service.

“Internet access service” means a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. “Internet access service” also encompasses any service that the Federal Communications Commission or the Public Utilities Commission finds to be providing a functional equivalent to the service described in this subdivision.

Opponents are raising concerns with the term “functional equivalent” despite the 70 words preceding the term to limit and explicitly define what an eligible functional equivalent is. Lets break down the definition in its component parts to demonstrate. An ISP covered under A.B. 375 must be the following things:

1) Mass-market retail service
2) Transmit data by wire or radio
3) Capable of receiving and sending data to all or substantially all Internet endpoints
4) Includes capabilities that are incidental to and enable the operation of the communications service
5)Does not include dial up Internet
6) Directly provide the Internet access service
7) Includes services the FCC or CPUC finds to do parts 1-6 above

If this Level of Obfuscation and Attempts to Prevent a Law That Restores Your Broadband Privacy Rights Upsets You? You Need to Pick Up The Phone

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