GOP Kicks Another Can Down the Road

Congress is great at this game.

While President Donald Trump wasted little time after taking his oath of office to outline his vision to “make America great again,” Republicans in Congress have behaved more like a sleepy bear waking from nearly a decade of hibernation.

The latest example of this legislative yawn was the move by the House last week to “reform” internet privacy laws. In a typical “pass-the-buck” fashion, the House majority simply concurred in a vote by the Senate to overturn a 2016 decision by the Federal Communications Commission (FCC) that limited in a small way how Internet Service Providers (ISPs) could access and use browsing data for commercial purposes, such as selling it to third parties.

Last year’s ruling by the FCC, however, only applied to ISPs and not industry giants such as Google and Amazon; and, this was the public excuse on which the House GOP hung its hat to justify the precipitous vote to ratify the Senate action and nullify the rule.

Supporters of the measure, which included all but 15 House Republicans, claimed the Obama-era ruling was “unfair” because it only applied to ISPs, and not everyone else. They also argued in another inside-the-Beltway manner that it should have been a different federal regulatory agency – the Federal Trade Commission (FTC) – that made the change. So, in what now seems to be the way Rep. Paul Ryan and Sen. Mitch McConnell are running things at the Capitol, when confronted with a substantive but important question of reforming and modernizing a complex issue – in this case, internet privacy — Republicans simply hit the “Easy Button,” call it a day, and return to the status quo.

If the excuse for this failure to address a timely and relevant issue sounds familiar, it should. Simply look at the failure by the GOP last month to take the time and devote the effort to develop, draft, present and explain to the American people a true repeal and replacement for Obamacare – rather than the Rube-Goldberg plan that neither repealed the underlying law nor replaced it with comprehensive, market-base provisions. Doing little is always easier than doing it right.

Many of today’s laws regarding data and personal privacy reflect technology from the 1970s and 1980s, long before the age of the internet cloud, search engines, and metadata. As such, they are woefully inadequate at addressing pressing practical and constitutional questions of personal privacy; this in an era when even a small sampling of an individual’s search history can reveal deeply intimate details of one’s life.

Supreme Court Justice Sonya Sotomayor perfectly captured this sentiment and the need for modernizing privacy laws in her concurring opinion in United States v. Jones, a 2011 case dealing with GPS tracking. Sotomayor argued a comprehensive re-write of our nation’s privacy laws; arguing quite correctly that the current approach “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Rather than scrap the FCC ruling, and in turn one of the few positive steps for personal privacy in the modern era, Republicans should have seized the opportunity for the first true attempt to bring privacy laws into the 21st Century. It would have been a major victory for the GOP, demonstrating a vision for constitutional leadership that heretofore has been noticeably absent. Instead, congressional Republicans took yet another shortcut, putting off the hard work behind meaningful, comprehensive reform for another day that is likely never to come.

The missed opportunity is a reminder of Winston Churchill’s observation that, “men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened.” Congress acts in much the same way — stumbling on opportunities for real change, but hurrying along before any real work is required of them. This is why advocates of privacy reform such as the Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), and other like-minded groups must start applying serious pressure on the Congress – and continue applying pressure – in a concerted effort to force Congress to challenge the powerful lobbying arm of Silicon Valley and other vested interests. Privacy advocates must be prepared also to challenge federal law enforcement agencies on this matter; agencies that prefer to keep the laws and regulations under which they operate as vague and outdated as possible, in order to offer them maximum room to maneuver.

Left to its own devices, the Congress will do what it excels at — kicking the can down the road.