Such efforts were always going to draw the ire of tech and telecommunications companies, as well as their surrogates. But a new lawsuit, which asserts that a Maine privacy law violates the First Amendment rights of internet service providers, offers important insights into an industry unwilling to accept the will of the people.
The lawsuit, launched by four of the largest telecommunications industry groups — America’s Communications Association, CTIA, NCTA and USTelecom — alleges that a Maine law passed last June “imposes unprecedented and unduly burdensome restrictions on ISPs’ ‘protected speech.’”
What are those “burdensome” restrictions, exactly? The Maine law, which is scheduled to take effect July 1, requires ISPs to obtain customers’ opt-in consent before using or sharing sensitive information, such as location, medical or financial data. Many companies collect, share and sell this information by default, requiring a user to seek out ways to stop this, or opt out. In other words, the Maine law makes privacy the default rather than a hard-to-find option.
Lobbyists for the telecommunications industry have repeatedly stymied efforts to create federal consumer protections, and even succeeded in securing the repeal of the Federal Communications Commission’s modest broadband privacy rules in 2016. This motivated states like Maine, California and Washington to fill the gap with their own impactful and forward-thinking legislation to protect consumers.
The telecommunications industry now balks at these state-level efforts. It is clear that the industry would like no regulations, if at all possible, and would prefer not to be held accountable for how it treats consumers.
It is unclear, however, how giving consumers the right to control and protect their personal data represents an unconstitutional abridgement of a company’s free speech. It is an untested argument that tech and legal experts doubt will hold up in court.
Arguments that states are unable to usurp a federal policy of nonregulation are equally unconvincing. After the FCC eliminated its own set of net neutrality rules in 2017, the agency argued that states could not legally pass their own net neutrality rules. The U.S. Court of Appeals for the District of Columbia Circuit disagreed, ruling that the FCC “lacked the legal authority to categorically abolish all 50 states’ statutorily conferred authority to regulate intrastate communications.”
The argument that Maine is regulating what the federal government has chosen not to is far more compelling than big telecom’s assertion that its free-speech rights are being abridged.
Americans are fed up with having their privacy routinely violated and their personal data regularly compromised by the companies trusted to provide internet access. Maine did the correct thing by standing up for the rights of its residents. Its legislation is a model for states throughout the country. No legislature should be scared off from passing its own regulations as a consequence of this spurious lawsuit from the skittish telecommunications industry.
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