A billboard targeting Arizona Senator Jeff Flake after he introduced a measure that would block federal internet privacy rules from going into effect.
A billboard targeting Arizona Senator Jeff Flake after he introduced a measure that would block federal internet privacy rules from going into effect.
Courtesy of Fight for the Future

Jeff Flake Fired an Early Shot in the Death of Net Neutrality

A moment of silence for net neutrality. While the fight isn't over, federal rules that ensure internet providers must provide equal access to online content without speeding up or throttling certain content are no more.

Today, the Federal Communications Commission voted 3-2 to repeal the 2015 rules implemented under the Obama administration. And in the Republican-led war on the commission, Arizona Senator Jeff Flake has been at the front lines.

Flake introduced a Congressional resolution last spring that blocked the FCC from implementing privacy rules governing the use of consumer data, such as browsing history.

In a statement, Flake said the FCC privacy rules would "limit consumer choice, stifle innovation, and jeopardize data security by destabilizing the internet ecosystem."

The senator argued over and over — including in an opinion piece in Phoenix New Times — that the measure would not reduce existing privacy protections. Instead, Flake said the measure would allow a "consumer-friendly approach to internet privacy regulation" and would block "prescriptive data restrictions on internet service providers."

But it's not that simple. Under the Congressional Review Act (CRA), lawmakers can tell federal agencies what regulations to enforce. When Flake's resolution passed Congress and was signed by President Trump in April, it essentially told the FCC to stop requiring internet providers to get your consent before they sold your personal information, including browsing history and app usage data.

Now that net neutrality is dead, Flake's action last spring seems like an early attack on the FCC as an arbiter of an open and consumer-friendly internet, instead of an agency that caters to the wishes of giant telecom companies.

Ernesto Falcon, legislative counsel for the Electronic Frontier Foundation, explained that Flake's CRA resolution and today's net neutrality decision are "directly interrelated."

The Title II rules of the Federal Communications Act that allowed the FCC to regulate internet providers as a telecommunications utility were at issue with Flake's privacy resolution, too.

Today's FCC decision went further, removing the Title II telecommunications designation entirely in favor of classifying internet providers as an "information service" and blunting the agency's rule-making teeth as a result.

"What Senator Flake’s CRA did was kind of injure the Title II privacy rules," Falcon told New Times. "And what the FCC did today is kind of the nail in the coffin. You injured the rules so it’s harder for the agency to enforce privacy, and now the agency has abandoned privacy rules completely."

When Flake's resolution passed last spring, people were furious. Constituents shouted and waved signs at a Flake town hall meeting in April. One asked him, "If we take up a collection here tonight, will you go ahead and sell us your internet history right now?"

Internet-freedom campaigners with the organization Fight for the Future purchased a billboard at I-10 and Baseline Road featuring Flake's mug and his office phone number. "Flake betrayed you," it said, and listed his $185,000 in contributions from the telecommunications industry.

At the time, Flake's press office called the billboard "disingenuous."

"It’s flat-out inaccurate to imply that anyone’s online privacy protections have changed, much less been compromised," they explained. "The privacy protections internet users had before the rule are the same privacy protections they have today.”

Flake's office did not immediately respond to requests for comment.

Ironically, the same congressional review process that Flake used to block the privacy rules is one avenue that lawmakers could use to resuscitate net neutrality, blocking the FCC's decision just like Congress did with the privacy rules last spring. Falcon estimates that Flake and others could have an opportunity to vote on that review within the next three to six months.

It's not going to be easy for the Republicans who supported the neutrality repeal — we've seen the kind of opprobrium that was directed at Flake when he led the charge on blocking the privacy rules repeat itself with all the lawmakers who supported today's decision.

Falcon said, "Senator Flake and, I think, every Republican senator really has a political challenge in front of them."

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