Big Telecom's Quest To Use The First Amendment To Scuttle Privacy Laws Won't Go Well, Experts Predict

from the we-have-the-Constitutional-right-to-do-whatever-we-want dept

For a few years now, US telecom mono/duopolies like Comcast and AT&T have been trying to claim that absolutely any government attempt to hold them accountable violates their First Amendment rights. When their lobbyists were pushing to kill FCC net neutrality rules (and FCC oversight of telecom in general), they repeatedly tried to claim the rules violated their right to free speech, despite the fact that as simple conduits they don't engage in "editorial" decisions, making the argument both flimsy and silly.

That hasn't stopped them from aggressively abusing the 1A argument constantly to see if it sticks anyway. Verizon has argued it has a First Amendment right to hand your call data over to the government. Comcast has argued its First Amendment rights were violated when it was told to stop blocking competing channels' access to its cable lineup. Charter has tried to argue that requiring it adhere to local video franchise agreements (it signed) similarly violates its free speech rights. Inversely, the industry-friendly FCC has falsely claimed community-owned and operated broadband ISPs pose a dire threat to free speech.

And as companies try to scuttle efforts to finally pass some kind of US privacy law for the internet era, this argument has popped up yet again. As you might recall, the telecom lobby convinced the GOP-held Senate to kill off some modest federal FCC privacy guidelines back in 2017. In response, much as we've seen with the net neutrality fight, numerous states have responded by trying to fill the void with an inconsistent platter of state-level privacy guidelines.

After effectively creating this problem telecom lobbyists have whined endlessly about these state laws clinging once again to the argument that it somehow violates their First Amendment right to free speech. Hoan Ton-That, the CEO of Clearview AI, has similarly been trying to claim that his company has the First Amendment right to scrape user photos from social media platforms.

Given the shaky nature of the US court system when it comes to ignoring hard logic and data (Exhibit A: both the T-Mobile Sprint and AT&T Time Warner merger approvals) it's not impossible that some courts will help prop up these shaky, self-serving arguments. But Colorado Law's Margot Kaminski and Scott Thompson at Slate have a good primer on how they probably won't:

"We are cautiously optimistic that courts won’t fall for the simplistic arguments offered by companies trying to fend off new privacy laws, in part because the Supreme Court has recently expanded its understanding of privacy harms. Companies often ignore that the above cases do empower governments to enact privacy laws when they have an interest “of the highest order” in doing so—that is, when they can articulate significant privacy harms.

Of late, the Supreme Court has recognized exactly the kinds of harms implicated by large-scale, ongoing surveillance enabled by technologies such as facial recognition, even when the surveillance is of “public” space. Such surveillance, the court acknowledged, reveals traditionally sensitive information such as your health (if you are recorded regularly visiting a doctor), your political affiliations (if you are tracked to a protest), your addictions (if you are tracked to an Alcoholics Anonymous meeting), and even your sexuality (if you are tracked to a gay bar). Additionally, surveillance over time reveals patterns in your behavior, sensitive inferences that you may not knowingly reveal at all."

Their central argument is that regulations aimed at protecting basic privacy rights are often necessary to safeguard First Amendment rights. As a result, efforts to scuttle state-level privacy efforts in states like Maine may not go all that well, given that ISPs ignore that privacy in one’s communications is central to free expression and free association:

"There is a not insignificant chance that courts will consider most of the wave of new privacy laws (such as Maine’s) to be regulation of bargains struck between consumers and companies, not regulations of speech.

...As we’ve each underscored in our research reconciling the right to privacy with the First Amendment, the two are often interdependent. Where privacy regulations advance First Amendment interests, they are on stronger legal ground against First Amendment challenges.

Keep in mind, the privacy, hacking, and security scandals we've seen to date -- even the extraordinarily dumb ones like Equifax or Cambridge Analytica -- are probably a faint echo of the privacy scandals to come. Especially if we continue down the same path of feckless regulators, flimsy antitrust enforcement and consumer protection, and a refusal to even embrace some very basic privacy and security guidelines for the internet era. As such, as even dumber scandals arise, the arguments cited above are likely to become more potent.

Filed Under: 1st amendment, free speech, privacy, telco
Companies: at&t, comcast, verizon

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  1. icon
    Stephen T. Stone (profile), 25 Mar 2020 @ 2:41pm

    Have you ever heard the term “collateral damage”? It refers to the unintentional deaths of civilians during a military operation. But the phrase can be applied outside the military, too.

    Let’s take, for example, your logic that no corporation should have rights that are “reserved for individuals”. One of the rights protected in the First Amendment is the right of association. Your logic, if applied to Twitter, says Twitter can and should be denied that right. And I’m sure you have no problem with that.

    But have you ever thought about the consequences of doing that? Because I don’t think you have.

    Let’s assume that you get your wish: Twitter loses the right of association. Individuals still have the right of association, though. That means they also have the right to associate with people on Twitter. Any attempt by Twitter to ban someone would violate that right, especially since Twitter no longer has that right.

    Twitter would also lose the right to ban any legally protected speech. The service can’t refuse association with certain speech if it doesn’t have that right in the first place. That means propaganda for bigotry (e.g., KKK propaganda) would be explicitly allowed on Twitter even if Twitter didn’t want to host that speech.

    “Oh, but that’s a small price to pay for true individual freedom,” you might be thinking. Okay. Now what about the collateral damage? Under your logic, Twitter can ban neither people nor certain kinds of speech from the platform. That means it will be overrun with spammers, bigots, and various assorted assholes. Their speech will drown out the speech of others, especially marginalized people, who will likely stop posting because they want to mitigate any possible harassment. Twitter will lose the voices of a great many people who would otherwise be a benefit to Twitter because it can’t do anything about the assholes.

    The concept of “collateral damage”, in this case, would equate “military action” with “nullifying corporate rights”. The “collateral damage”, then, would be the marginalized voices silenced by Twitter’s inability to infringe upon rights “reserved for individuals”. So tell me: For what reason should Twitter be forced to host people/speech its admins don’t want on the platform?

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