ISPs Take Issue with Maine Data Sharing Consent Law

The law, which passed in 2019 and takes effect in July, would require Internet service providers to obtain opt-in consent from customers before any sharing or use of personal data could occur.

by Eric Russell, Portland Press Herald / February 19, 2020

(TNS) — Four national associations that represent Internet service providers have sued Maine officials over a law that requires companies to get opt-in consent from customers before sharing or using personal data.

The law, which passed last year and is set to go into effect in July, is among the strictest consumer privacy protections in the country. It was modeled on a Federal Communications Commission rule that was adopted under the administration of President Obama but overturned by the administration of President Trump in 2017.

32-page complaint, filed last Friday in U.S. District Court in Portland, says Maine’s new law violates First Amendment protections by, among other things, restricting ISPs from advertising or marketing services to customers or from offering discounts or rewards in loyalty programs.

“Maine cannot discriminate against a subset of companies that collect and use consumer data by attempting to regulate just that subset and not others,” the complaint reads. “Maine’s decision to impose unique burdens on ISPs’ speech — while ignoring the online and offline businesses that have and use the very same information and for the same and similar purposes as ISPs — represents discrimination between similarly situated speakers that is impermissible under the First Amendment.”

The complaint further alleges that “the statute thus excessively burdens ISPs’ beneficial, pro-consumer speech about a wide variety of subjects, with no offsetting privacy-protection benefits,” and that “customer personal information” is too broadly defined and includes data that would not be considered sensitive.

Named as plaintiffs are: ACA Connects, America’s Communication Association; CTIA, the Wireless Association; NCTA, the Internet & Television Association; and USTELECOM, the Broadband Association.

Named as defendants are: Maine Attorney General Aaron Frey and the three members of the Maine Public Utilities Commission: Philip Bartlett, Bruce Williamson and Randall Davis.

The complaints asks the court for “an injunction prohibiting Defendants in their official capacities — as well as Defendants’ officers, agents, employees, and all persons acting in concert with them who receive actual notice of the injunction — from enforcing or threatening to enforce the Statute and any implementing regulations.”

The new law, from a bill sponsored by Sen. Shenna Bellows, D-Manchester, passed last May despite some opposition from Republicans and was signed into law by Gov. Janet Mills.

Some local ISPs testified in favor.

“For Maine’s ISPs, the value of the law would far outweigh the regulatory cost. All Maine citizens would benefit from having their privacy protected,” said Fletcher Kittredge, CEO of GWI.

CTIA, one of the lawsuit plaintiffs, was among those who testified in opposition.

“There is no gap in privacy protections that needs to be filled by LD 946. Consumers are well protected by the FTC, the nation’s expert privacy protection enforcement agency.” said Bethanne Cooley, senior director for state legislative affairs for the association the represents wireless companies.

The law was expected to face a legal challenge from those who felt it conflicts with federal law.

“In a landscape where privacy seems to be eroding, it is necessary for the state to take measures to place guardrails protecting consumers,” Frey said in his testimony last year. “The Office of the Attorney General believes this bill is legally defensible and would vigorously defend it on behalf of Maine consumers if necessary.”

Maine’s law is unlike any in the nation, as it requires an ISP to obtain consent from a consumer before sharing any data. Only California has a similar law on the books, but it requires consumers to “opt out” by asking their ISP to protect their data.

Although Maine’s law conflicts with federal rules, a federal appeals court ruled last October that the FCC “lacked the legal authority to categorically abolish all 50 states’ statutorily conferred authority to regulate intrastate communications.”

©2020 the Portland Press Herald (Portland, Maine) Distributed by Tribune Content Agency, LLC.

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