Court Shoots Down AT&T, Comcast Attempt To Crush Maine Privacy Law
from the have-your-cake-and-eat-it-too dept
Over at our Tech Policy Greenhouse, former FCC official and consumer advocate Gigi Sohn just got done discussing a landmark privacy case in Maine that hasn’t been getting enough attention. The short version: back in 2017, the GOP killed some pretty modest FCC broadband privacy rules at the telecom lobby’s behest. Despite a lot of whining from telecom giants, those rules weren’t particularly onerous — simply requiring that ISPs be transparent about what data they’re collecting and who they’re selling access to, while requiring that users opt in to the sharing of more sensitive financial data.
Much like net neutrality, federal lobbying by telecom giants had an unintended impact: namely once the feds showed they were too corrupt and captured to protect consumers, states began passing their own laws (some good, some bad) in order to fill the consumer protection void. On both the privacy and net neutrality fronts, giant ISPs like AT&T and Comcast cried repeatedly about how this created a “discordant and fractured framework of state protections,” hoping you’d ignore this was a problem the industry itself created by relentlessly attacking even the most modest federal guidelines.
Last year, Maine passed one such privacy bill modeled after the discarded FCC rules. Again the focus was largely on requiring that ISPs be transparent about what data is collected and who is buying access to it, while requiring that users opt in to the share and sale of access to more sensitive data. It also banned ISPs from charging you more money just to opt out of snoopvertising, something AT&T has already experimented with. The law was not, as telecom giants and their dollar per holler allies have claimed, particularly onerous.
Comcast and AT&T sued anyway in a bid to have the law thrown out before a broader trial. In short, ISP lawyers tried to argue that giving consumers control over their own data violates ISPs’ First Amendment right to market goods and services. They also claimed that by passing a privacy law that specifically targeted telecom providers, 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.” As Sohn noted, while the case didn’t get a lot of attention, the precedent of a telecom industry win here would be terrible for future efforts to pass any kind of intelligent, industry-specific tailored privacy protections whatsoever:
“Should it accept [these arguments], 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.
Things didn’t quite work out as Comcast and AT&T had hoped. This week, a Maine court shot down AT&T and Comcast’s attempt to have Maine’s law trashed, ruling (pdf) in favor of Maine Attorney General Aaron Frey, who had argued that Maine’s law “regulates a space Congress explicitly left open, and any conflict is a figment of Plaintiffs? imaginative pleading.” In the ruling, Judge Lance Walker noted that Maine’s privacy law can’t conflict with federal guidelines, because the industry and government worked hand in hard to eliminate said guidelines:
“Congress?s nullification of the ISP Privacy Order, therefore, creates no overarching federal policy, and enacts no scheme with which the Maine Privacy Statute can conflict.”
In its net neutrality repeal (which gutted FCC oversight over ISPs), the FCC tried to include a provision banning states from protecting consumers. But courts so far haven’t looked kindly upon that effort, noting that federal regulators can’t abdicate their consumer protection authority, then tell states what to do. Walker again supported that position here. Walker also didn’t seem to think much of the telecom industry’s claim that the law violated their First Amendment rights:
“Plaintiffs? Motion simply fails to clarify how an ill-defined opt-in and opt-out regime would inhibit any protected First Amendment activity; for example, how it might chill them from preparing particular marketing materials for sale to customers. And, they have not begun to bear their burden to show the statute would be unconstitutional in “all of its applications,” as they must for a facial challenge.”
The case will now proceed to a full trial. But it’s worth noting this is just one of several fronts where the telecom industry is lobbying to kill federal consumer protections, then arguing that states are prohibited from doing anything on their own. The industry wants to have its cake and eat it too; it’s pushing for a world in which nobody anywhere would be able to hold natural, widely despised monopolies accountable for pretty much anything. Their arguments surrounding free speech are not made in good faith; they’re a flimsy attempt to use the First Amendment to effectively eliminate any and all oversight of a sector with a thirty-year history of anti-competitive and often fraudulent behavior.
So far, as we also saw when the net neutrality repeal tried to ban states from protecting consumers, this effort is not going particularly well. But as the courts are increasingly gutted and staffed with dutiful partisan bobbleheads, there’s no guarantee that trend persists.