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The Most Important Privacy Case You've Never Heard Of

from the pay-attention dept

One of the most important privacy cases you?ve never heard of is being litigated right now in a federal district court in Maine. ACA v. Frey is a challenge by the nation?s largest broadband Internet access providers to a Maine law that protects the privacy of the state’s broadband Internet users. If the broadband providers prevail, this case could eliminate sector-specific privacy laws across the nation, foreclose national privacy legislation, and have broad implications for broadband regulation generally.

In May 2019, the Maine legislature overwhelmingly passed LD 946, “An Act to Protect the Privacy of Online Consumer Information.” The law largely tracks the now-repealed FCC?s 2016 broadband privacy rules, requiring broadband providers to obtain customer consent before disclosing, selling or otherwise using customer personal information. When the Maine bill was being considered, broadband providers complained that the law didn’t apply to online companies like Google, Facebook, and Amazon. If everyone was treated the same, they claimed, they would support privacy legislation.

But the industry’s lawsuit shows that its true intent is to avoid privacy regulation of any kind. Instead, they claim that giving consumers any control over their own data violates the First Amendment rights of the broadband providers to market goods and services. The industry also claims that by targeting only broadband providers, and not edge providers or any other company, the law is based on their status as a “speaker” and should be subject to “strict scrutiny” under the First Amendment, which requires a law to be “narrowly tailored to serve a compelling state interest.”

The court should reject these arguments. Should it accept them, it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional “speaker-based” violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.

The broadband industry argues that there?s no good reason to regulate it differently than any other company. But their claim that “no special characteristics of ISPs justify that distinction” doesn?t reflect reality. Broadband access providers do have “special characteristics” that other companies?including edge providers?do not.

As the FCC found in 2016, a broadband provider “sits at a privileged place in the network, the bottleneck between the customer and the rest of the network.” This gatekeeper position allows broadband providers to see every piece of digital information a customer sends and receives over the Internet while on the network, often including the content of the information. Broadband providers see every website a customer visits, every communication they make, every device they use and, in many cases, every location they have visited.

Despite Big Broadband?s breathless objections, the principles underlying Maine?s broadband privacy law are nothing new. Instead, the law fits within a longstanding tradition of state and federal laws that prohibit those that deliver messages of all kinds?whether paper or electronic?from disclosing any information relating to those packages; in other words, a duty of confidentiality. This “common law” covers everyone from the post office to the telephone company to a broadband provider.

The reasoning is simple: in order to receive service, customers must expose their personal information to those entities. Like the post office or a telephone company, broadband providers shouldn’t be allowed to unfairly exploit that information or reveal that information to others for profit. None of these laws violate the First Amendment. If this duty of confidentiality were found to be unconstitutional, all these laws, and those that protect lawyer/client, doctor/patient, and other fiduciary relationships would fall as well.

In any case, the core behavior prohibited by the statute?collecting and selling data?isn’t even speech. The First Amendment typically protects “expressive” activity?something meant to convey a message. Instead, the law regulates the commercial exchange of data. Just because the data could potentially transmit information does not make it expressive. My former colleagues at Public Knowledge said it best in a “friend of the court” brief supporting the State of Maine:

Selling a collection of data to be used as a tool to develop products, enhance a search engine or develop marketing strategies is no more “expressive” than selling inside information to enhance a stock trade or selling paper at a retail outlet. The customer data is not commercial speech “proposing a transaction,” it is the object of the transaction. [.?.?.?] No one has ever found that regulation of raw materials ? such as marble or paper ? that imposes incidental burdens on speakers as well as others raises First Amendment concerns.

While the broadband industry should lose this case, there are never any guarantees. A decision favoring the broadband industry would put every consumer privacy bill and law?including those seeking to regulate the data collection and data protection powers of big technology companies, retailers, banks, hotels, credit reporting agencies and others?at risk, whether or not they are sector specific. Worse, a broad ruling in favor of the industry’s First Amendment “rights” could put other regulations at risk, including net neutrality and other efforts to protect consumers and promote competition. While normally a federal district court case in the sparsely populated state of Maine wouldn?t raise much nationwide attention, ACA v. Frey should. The future of consumer privacy protections may depend on it.

Jeff Gary is a project manager at Georgetown Law, where he runs technology-focused educational and training programs for state attorneys general and researches digital advertising. Previously, he worked in congress, federal agencies, and civil society on privacy, content moderation, and data security policy. He is a graduate of Georgetown Law and holds an M.A. in sociology of religion from King’s College London.

Gigi Sohn is a Distinguished Fellow at the Georgetown Institute for Technology Law and Policy and a Benton Senior Fellow and Public Advocate. She served as Counselor to Former FCC Chairman from November 2013-December 2016. While at the FCC, she worked on the 2016 Broadband Privacy Rules. She testified before the Joint Committee on Energy, Utilities and Telecommunications of the Maine Legislature on April 24, 2019 in support of the LD 946, Maine?s Broadband Privacy Law.

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Comments on “The Most Important Privacy Case You've Never Heard Of”

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12 Comments
ECA (profile) says:

I used to love the privacy laws.

Until 1 piece of info got out or was sold from 1 company to another and My mail box was FULL every day..

Even with the internet spam. I WISH they would require that I give PERMISSION, rather then NOT even asking.
Then selling to the highest bidder, Any bidder, anyone with a Buck.

You couldnt even ask the Company sending you the Spam, WHO they got the info from..( wish I had a nice/cheap lawyer)

Upstream (profile) says:

Privacy is paramount, not pointless.

giving consumers any control over their own data violates the First Amendment rights of the broadband providers to market goods and services.

<John Belishi coughing Bullshit!> That is stretching the 1A way beyond its admittedly elastic limits, which would result in permanent distortion. As the authors point out, the cascade effect of setting the wrong precedent here could be catastrophic.

Essentially all sharing of data should be strictly opt-in, and nothing should be contingent on opting-in.

Anonymous Anonymous Coward (profile) says:

Re: Privacy is paramount, not pointless.

Absolutely! And what about our 1st Amendment rights. It’s our data! Why is is that not only corporations, but our government (the courts especially, third party doctrine and all) think that the 1st Amendment doesn’t control our ability to control our own information.

U.S. Constitution – Amendment 1 – Freedom of Religion, Press, Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That part about freedom of expression should clearly allow for us NOT to speak, as in controlling information collected about us that we do now wish to express. It should be our decisions, not theirs.

I also don’t think that the establishment of ‘corporate personhood’, a fiction created in the interest of being able to deal with corporations properly, conferred all of the rights of the Constitution upon them. A search of the Constitution for the words corporation, company, and entity did not get any hits. Isn’t that telling.

Anonymous Coward says:

Perhaps we should revisit the laws against blackmail? They, too, infringe on the first-amendment rights of perpetrators to speak freely, as part of a commercial transaction.

Aside: oddly, enough, the egregious misquotation of the First Amendment in a previous post left out the whole paragraph about freedom from regulations covering commercial providers of goods and services. And I can see why people would misquote it that way. After all, how could the Food and Drug Administration–the Bureau of Alcohol, Tobacco, and Firearms–the Federal Trade Commission–the Federal Transportation Commission–the whole Departments of Agriculture or Health and Human Services–continue to exist if people recognized their meddling in commercial goods and services as blatantly unconstitutional?

ECA (profile) says:

Re: Re:

truth, fiction, lies, opinion,
Are all cheap and simple.. Blckmail tends to be someone did something Wrong, and feels guilty about it, esp when someone Else knows.

I love the concept that we have to be Perfect. We have to be this and that and the other. But we are not. We are human, and faulty.
Understanding this would solve allot of problems with other people.

There are strange idea of Forcing people to do something Stupid, just so you can control them.

Bartonufg (user link) says:

how to tell if a vietnamese girl likes you

India bids goodbye to ‘supermum’ tiger Collarwali

India bids farewell to ‘supermum’ tiger CollarwaliOf the 29 cubs Collarwali delivered over her lifetime, 25 survived to adulthood (AFP/Pench Tiger source)

Indian animal lovers are in mourning over the sudden passing of a nationally famous tigress credited with repopulating a forest redoubt for her endangered kin.

Collarwali, dubbed "Supermum" By local press for becoming pregnant to nearly 30 cubs, Died quietly at the weekend after an intestinal problem.

Sombre resource efficiency officers gently carried Collarwali body onto a funeral pyre garlanded with flowers for her ritual cremation.

"The tigress was very popular at the reserve and with the neighborhood, Alok Mishra, Field movie director of the Pench Tiger Reserve in Madhya Pradesh state, said AFP.

"all players knew about her,

Collarwali earned her celebrity following for invigorating the local tiger population, And drew attendees from across India to the reserve, In an area purported to be the contemplation for Rudyard Kipling famed "rainforest Book" Anthology.

Of the 29 cubs she delivered over her lifetime, 25 survived to the adult years.

Her strange name "With training collar" In English came from a research project conducted in the character park in her infancy.

"She was the first tiger to create a collar at the reserve, Mishra identified.

"That was rationale she became very famous. The collar ensured that she was very extensively recorded and well known,

India is home to around 75 percent around the world remaining tigers, But hunting and habitat loss have slashed the populace to dangerously low levels.

Footage of Collarwali prowling her an environment was shared on social media after news of her death, moreover an outpouring of heartfelt tributes.

"Wildlife lovers and enthusiasts will learn how heartbreaking it is, When a majestic tigress goes into silence forever, One user wrote on facebook.

"deal to, princess of Pench. You survived long and majestically, Said another. Senate Judiciary Committee is set <a href=https://www.bestbrides.net/how-to-tell-if-a-woman-likes-you-based-on-her-zodiac-sign/>how to tell if a libra woman likes you</a> to decide Thursday perhaps the full Senate should vote on two bills aimed at reining in tech giants like Alphabet Google and Meta Facebook. Lawmakers are required to consider an amended version of a bill introduced by Senators Amy Klobuchar, each Democrant, And toss Grassley, every Republica nicen, That would bar tech platforms like Amazon from giving preference to their personal businesses on their websites. international and domestic spending volumes increased 104% and 17% respectively year on year in December, Network online said in a statement. Nexon made your time and money in mobile game publisher Six Waves in 2011, Aiming to grow in the social gaming field. throughout the last 24 hours, India hit an innovative eight month high with 317,532 new wax, While deaths rose by 491, almost this month peak, the actual figure included 85 from a previous wave in the southern state of Kerala. appearing in Mumbai, The financial capital, Daily new infections fell on Wednesday to 6,032, Down from an all-time high of 20,971 on january. 7, municipal figures showed.
[—-]

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