Four ISPs are suing the state of Maine because it is allegedly violating broadband providers’ free speech because a new law forces them to ask for their customers’ permission to sell their browser history.
If you think that sounds bizarre, that probably means you’re not a telecom lobbyist or executive at a big internet service provider. If you’re a regular person who likes the idea of having some privacy around your internet behavior, and regardless of the Citizens United decision, you continue to insist that corporations are not people and don’t have innate First Amendment rights, you’re probably asking, “So, what’s the problem?”
In June of 2019, the Public Utilities Commission (PUC) in the state of Maine passed a statute meant to protect users from data-harvesting on a corporate scale. It requires internet service providers (which includes all mobile phone companies) to get “opt-in” consent from customers before using any information harvested from their uses of their services, and prevents them from offering perks, discounts, or benefits to customers who do decide to opt in.
This internet privacy statute is very similar to rules and protections scuttled by the Federal Communications Commission in 2018 after intense ISP and telecom lobbying at the federal level.
Now Maine is being sued by four ISP groups: ACA Connects, CTIA, NCTA, and USTelecom. Specifically, the lawsuit names attorney general Aaron Frey as well as the chair and commissioners of the PUC. It alleges that the law infringes on the free speech of the internet service providers.
The ISPs claim that the law requires them to treat all data as sensitive even if it is demonstrably not, prevents them from advertising to their customers, and that the internet privacy statute is an “excessive burden” on internet service providers because it doesn’t apply to all businesses that might collect information.
“Maine cannot discriminate against a subset of companies that collect and use consumer data by attempting to regulate just that subset and not others, especially given the absence of any legislative findings or other evidentiary support that would justify targeting ISPs alone,” said a brief from the lawsuit.
Maine maintains that internet service providers, being the mechanism through which so many people do business and interactions requiring all levels of privacy, should bear an added burden in the protection of that privacy. The state also disagrees that it prevents internet service providers from advertising to their own client base, merely from allowing other companies to access that base.
If the Maine challenge is successful, major telecoms and ISPs will most likely try to challenge California’s sweeping internet privacy laws.