Ajit Pai Won’t Brief Congress on Carrier Privacy Violations During Shutdown

Last week, news broke that AT&T, Sprint, and T-Mobile have all been continuing to sell location data to third-party data brokers, ultimately allowing the information to fall into the hands of bounty hunters, who can use these databases to track people in real-time for dollars a day. The news was particularly explosive given that the carriers had previously pledged to stop using data for this purpose and to wind down such programs.

After the news broke, Frank Pallone, Chair of the House Committee on Energy and Commerce, requested an emergency briefing from Pai on the topic, asking to know why the FCC “has yet to end wireless carriers’ unauthorized disclosure of consumers’ real-time location data.” Phone carriers are legally required to protect Customer Proprietary Network Information (CPNI), which includes location data. The FCC is therefore still legally allowed to monitor and hold companies responsible for protecting this information, even though the 2017 broadband privacy rules passed by the previous FCC chair, Thomas Wheeler, have been repealed.

The FCC’s response? “Nah.”

“Today, FCC Chairman Ajit Pai refused to brief Energy and Commerce Committee staff on the real-time tracking of cell phone location, as reported by Motherboard last week,” Pallone said in an emailed statement. “In a phone conversation today, his staff asserted that these egregious actions are not a threat to the safety of human life or property that the FCC will address during the Trump shutdown.”

On the one hand, the FCC has a genuine point. These are not issues that threaten life and limb the way that certain other topics could. Carriers’ continued hemorrhaging of consumer data — the companies in question have now pledged to stop in March, having previously promised to stop by the end of the year — does not necessarily represent the kind of threat that is contemplated by the orders limiting the function of the government in a shutdown scenario.

But this kind of flat refusal would undoubtedly play better if Pai’s FCC had shown much concern for the privacy of Americans to begin with. According to the FCC, it has been investigating carrier treatment of location information and will be happy to return to that investigation as soon as the government re-opens.

Your wireless phone location data is being sold by shady entities that you never gave permission to track you. That’s a personal and national security issue. No law stops the @FCC from meeting with Congress to discuss this right now. It needs investigation.https://t.co/XbPpFyS1ec
— Jessica Rosenworcel (@JRosenworcel) January 14, 2019

One FCC Commissioner, Jessica Rosenworcel, indicated she would be willing to testify to Congress despite the shutdown. No law prevents the FCC from meeting with Congress on the topic during the shutdown, and the decision to refuse to do so, ultimately, is up to the FCC. As a minority member of the FCC (Rosenworcel is one of the Democrats on the panel), she would not have access to the full set of information that Pai has, however.

Pai’s tenure at the FCC has not been marked with any particular concern for citizens’ privacy rights or rights in general. In addition to pushing to roll back earlier privacy legislation, he’s changed the FCC’s process for handling informal complaints, making it more likely that citizens will need to pay a $225 fee to file a formal complaint before the FCC will investigate a problem. He’s also proposed heavily criticized changes to the Lifeline program that helps poor people purchase phone and internet service that could cause up to 70 percent of subscribers to lose their coverage. The FCC claims that blocking bulk resellers from participating in Lifeline will encourage other carriers to step up and provide these services. The actual companies responsible for providing said service, like Verizon and the industry trade group CTIA, have both lobbied the FCC not to gut the program, noting that the proposed changes would “negatively impact millions of low-income consumers who rely on wireless supported lifeline services.”

One can easily argue that Pai is demonstrating the same concern for citizen privacy and rights that he’s held throughout his tenure to-date. On the other hand, one can also argue that the purpose of a government shutdown is just that — to shut down the government. One of the paradoxes of a shutdown situation is that finding ways to maintain (semi)-regular order despite the shutdown can make the shutdown drag on longer precisely because it relieves pressure to resume regular orders of business. One doesn’t have to agree with either side in any given shutdown fight to see the logic at work. If you want to encourage the two sides in the debate to reach a resolution and reopen the government, the best way to accomplish it may be to make the shutdown as painful as possible. Wanting answers from the FCC over how carriers have been allowed to drag their collective feet when it comes to shutting down data access isn’t likely to move the ball on the overall shutdown fight — but it emphasizes the point that the government isn’t supposed to be open for business in the first place and increases the pressure on legislators and the President to find a solution.

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