The broadband industry is suing Maine to stop an Internet browsing privacy law similar to the law that was killed by Congress and President Donald Trump in 2017. Industry groups claim that the state law violates the First Amendment protection of freedom of speech and the supremacy clause of the US constitution.
The Maine Act was signed in June 2019 by Democratic Governor Janet Mills and is scheduled to enter into force on July 1, 2020. ISPs must obtain customer approval before using or sharing sensitive information. As Mills’s announcement in June said, "State law prohibits a broadband internet access service provider from using, disclosing, selling, or accessing customer personal information unless the customer agrees to such use, disclosure, the sale or access to expressly to the law also prohibits a provider from refusing to serve a customer, to charge a customer a penalty or to offer a discount to a customer if the customer uses, discloses, sells or accesses agrees to his personal information or not. "
Customer data protected by this law includes web browser history, application usage history, accurate geolocation data, customer communication content, IP addresses, device identifiers, financial and health information, and personal data used for billing.
Home ISPs and cellular operators do not want to obtain customer permission before using web browser histories and similar data for advertising or other purposes. On Friday, the four major cable, telecommunications, and cellular lobby groups sued the state before the United States District Court for the Maine District and applied for an injunction that would prevent the law from being enforced.
ISPs claim that the law violates the right to speak
State law "sets unprecedented and overwhelming restrictions on the protected language of ISPs and ISPs only", while not imposing requirements on other companies that provide services over the Internet, the groups wrote in their lawsuit. The plaintiffs are America & # 39; s Communications Association, CTIA, NCTA and USTelecom. They write:
Maine cannot discriminate against a subset of companies that collect and use consumer data by attempting to regulate only that subset and not others, especially given the lack of legal evidence or other demonstrable support that would justify addressing ISPs only. Maine's decision to burden ISPs in a unique way while ignoring online and offline businesses that have and use the same information and the same and similar purposes as ISPs constitutes discrimination between similar speakers who is not permitted after the first change.
The law is said to violate the first amendment because it "prevents ISPs from promoting or marketing non-communications services to their customers, and prohibits ISPs from offering discounts, loyalty program rewards, or other cost-saving benefits in exchange for customers agreeing to use theirs personal data, "says the lawsuit.
"The statute therefore places an excessive burden on ISPs' beneficial, consumer-friendly speech on a wide range of subjects without offsetting the benefits of data protection," the complaint continues. "At the same time, there are no restrictions on the use, disclosure, or sale of personal customer information, whether sensitive or not, by the many other companies in the Internet ecosystem or traditional brick-and-mortar retailers, thereby causing the statute to further depart from its stated purpose. "
The trading groups also say that Maine's law violates the U.S. Constitution's supremacy clause, which prioritizes federal law over state law that contradicts U.S. law. The Maine law "violates the supremacy clause because it allows consumers to determine (by disabling or refusing opt-in) when ISPs can use or disclose information that they must rely on to comply with federal law The trade groups claimed that the aforementioned federal laws were "impossible".
Ongoing struggle against state laws
The lawsuit is part of a larger struggle between ISPs and states trying to pass stricter regulations than those enforced by the federal government. One factor that may work against ISPs is that the Federal Communications Commission’s attempt to prevent all current and future laws on state net neutrality was blocked by a ruling by the Federal Appeals Court in October 2019.
The FCC claimed that it could prevent the state's net neutrality laws because government-imposed rules would undermine federal non-regulation policies. Similarly, the new lawsuit against Maine claims that the state data protection law contradicts Congress's decision to remove the FCC's broadband rules from the Obama era, and quotes the FCC's Trump-era view that the data protection practices of ISPs should not be regulated differently from other online companies.
While the FCC was allowed to override its own net neutrality rules, the judges said the commission "lacked the legal authority to categorically abolish the legally mandated authority of all 50 states to regulate domestic communications." If it defends its data protection law against the industry lawsuit, Maine would likely argue that it has the power to regulate broadband industry practices that the federal government has not regulated.