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. identicon
    Anonymous Coward, 24 Mar 2020 @ 2:35pm

    All your data are belong to us!

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 24 Mar 2020 @ 2:55pm

    Re:

    More like, stopping us raping people violates our first amendment rights.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 24 Mar 2020 @ 3:27pm

    Just take away rights from corporations that should be reserved for individuals. Put an end to this madness.

    reply to this | link to this | view in thread ]

  4. icon
    ECA (profile), 24 Mar 2020 @ 3:48pm

    When?

    When did a corp get Personal RIGHTS??
    God forgive the morons that did..

    reply to this | link to this | view in thread ]

  5. icon
    That One Guy (profile), 24 Mar 2020 @ 3:51pm

    If it's your speech it's your speech

    As always when this comes up I am perfectly happy to buy the argument that the government imposing controls over what ISP's can do on the network is a first amendment violation the second those ISP's agree to be held responsible for all of that content that they are trying to claim is theirs.

    reply to this | link to this | view in thread ]

  6. icon
    Stephen T. Stone (profile), 24 Mar 2020 @ 3:51pm

    Should that request include the right of association, especially for corporations that run social interaction networks (e.g., Twitter)? If so, keep in mind that you’d be saying Twitter should be forced to host any legally protected speech — including porn, spam, and White supremacist propaganda — regardless of whether Twitter admins want that speech on Twitter.

    reply to this | link to this | view in thread ]

  7. icon
    Anonymous Anonymous Coward (profile), 24 Mar 2020 @ 4:20pm

    Re:

    I am not so sure about that. Section 230, not the 1st Amendment protects them in that regard. Now if Section 230 gets eviscerated they might have to find other ways to control their content, and I suspect that expanded (can they get larger or more obtuse?) TOS's will be their vehicle.

    Aside from that, I think the concept of corporate personhood has limitations. While some personal rights might be granted, not all of them are. From Wikipedia:

    Corporate personhood is the legal notion that a corporation, separately from its associated human beings (like owners, managers, or employees), has at least some of the legal rights and responsibilities enjoyed by natural persons. In the United States and most countries, corporations, as legal persons, have a right to enter into contracts with other parties and to sue or be sued in court in the same way as natural persons or unincorporated associations of persons. In a U.S. historical context, the phrase "Corporate Personhood" refers to the ongoing legal debate over the extent to which rights traditionally associated with natural persons should also be afforded to corporations. A headnote issued by the Court Reporter in the 1886 Supreme Court case Santa Clara County v. Southern Pacific Railroad Co. claimed to state the sense of the Court regarding the equal protection clause of the Fourteenth Amendment as it applies to corporations, without the Court having actually made a decision or issued a written opinion on that point.

    That bit about the headnote tells us that the precident relied upon was something written by a clerk, not a judge, not a legislator, and not the Supreme Court. Justice Rehnquist was known to have doubts about this.

    I do not think corporations should have 1st Amendment rights which is why I get so worked up about the Citizens United decision that granted them permission to speak with their money. Much more money than any of us have, thereby giving them a greater voice amongst voices that are supposed to be equal.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 24 Mar 2020 @ 4:36pm

    Given the shaky nature of the US court system when it comes to ignoring hard logic and data...

    exhibit B: 'even with the video'

    I didn't find the example I was thinking of, where the court declared the driver was weaving even though the dashcam footage denied it.

    reply to this | link to this | view in thread ]

  9. icon
    Stephen T. Stone (profile), 24 Mar 2020 @ 6:39pm

    Section 230, not the 1st Amendment protects them in that regard.

    Assume you were to put a soapbox on your front lawn. You’d have every right to decide who can’t use, and what can’t be said on, that soapbox. The First Amendment protects your right to do that. 230 only extends such protections to online web services.

    if Section 230 gets eviscerated they might have to find other ways to control their content

    One of three outcomes will happen if 230 is nixed:

    1. Platforms will stop accepting user-generated content altogether, even if it means a platform will shut down.

    2. Platforms will stop moderating UGC altogether, even if it means a platform will be overrun with spam and other abhorrent speech.

    3. Platforms will moderate all UGC before it goes live, even if it means a platform will stop being a reliably smooth/quick service for posting UGC.

    None of those outcomes are good unless you happen to be a corporation dedicated to one-way passive entertainment that doesn’t necessarily rely on 230 to exist (e.g., Netflix).

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 24 Mar 2020 @ 6:53pm

    Re:

    unless you happen to be a corporation dedicated to one-way passive entertainment...

    Like Hollywood, the labels, old school publishers and newspapers.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 24 Mar 2020 @ 10:22pm

    phone - to -phone

    this should be banned during these trying times

    reply to this | link to this | view in thread ]

  12. This comment has been flagged by the community. Click here to show it
    icon
    reliablesprout (profile), 24 Mar 2020 @ 11:59pm

    Privacy Laws Won't Go Well

    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.
    <a href="https://www.reliablesprout.com">Reliable Sprout</a>

    reply to this | link to this | view in thread ]

  13. This comment has been flagged by the community. Click here to show it
    identicon
    Arshad, 25 Mar 2020 @ 12:02am

    Privacy Laws Won't Go Well

    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.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 25 Mar 2020 @ 6:54am

    Re: Privacy Laws Won't Go Well

    Has this stopped them from aggressively abusing the 1A argument constantly?

    reply to this | link to this | view in thread ]

  15. icon
    Bergman (profile), 25 Mar 2020 @ 7:01am

    ON the other hand...

    If all these things the corporations are claiming to be speech actually are, then copyright infringement would also be speech.

    After all, scraping content from people's sites to use in ways you aren't licensed to is copyright violation under the current understanding of free speech, whether that content is people's user images or the latest Hollywood movie.

    But if laws prohibiting that sort of thing are unconstitutional violations of freedom of speech...

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 25 Mar 2020 @ 8:34am

    Re:

    Fine, create an explicit set of rights that corporations are allowed but don't include any that should be reserved for individuals, the 1st Amendment protections included apart from freedom of the press. There's no reason that executives in a corporation should have "double rights", first as individuals and again as a collective.

    Corporations should not "stand" for anything, they should not have a voice and they should not be able to influence politics. They should be able to control how their services are used (not products, those should be owned and controlled by the purchasers). And press should still be allowed freedom of the press to publish just about anything. But that's about as far as it should go.

    reply to this | link to this | view in thread ]

  17. identicon
    Glenn, 25 Mar 2020 @ 10:08am

    Nothing that exists solely on paper--digital paper at that--has any Constitutional rights. Constitutional rights exist solely for the protection of live, sentient beings (aka citizens [and residents in most cases] of the US [in most cases]). Anyone who says otherwise has a personal agenda to sub-serve their own interests exclusively and screw everyone else.

    reply to this | link to this | view in thread ]

  18. 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?

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 25 Mar 2020 @ 4:28pm

    Re:

    If so, keep in mind that you’d be saying Twitter should be forced to host any legally protected speech

    That's not true. Saying corporations don't have rights would not prevent legislators from granting them privileges, such as content moderation under CDA 230. It also wouldn't cause any kind of flow-through requirement for their users' rights; e.g., even if corporations didn't have first amendment rights, that would not automatically impose any requirement to support the first amendment speech of their users.

    reply to this | link to this | view in thread ]

  20. icon
    Stephen T. Stone (profile), 25 Mar 2020 @ 6:07pm

    Saying corporations don't have rights would not prevent legislators from granting them privileges, such as content moderation under CDA 230.

    The First Amendment grants the right of association. 230 extends it to corporate-owned platforms. To say 230 could exist without the First Amendment — that 230 could/should grant corporations a right “reserved for individuals” — is illogical.

    To that end…

    even if corporations didn't have first amendment rights, that would not automatically impose any requirement to support the first amendment speech of their users

    …if corporations don’t/can’t have 1A rights, any attempt by a corporation to abridge those rights in re: individual users must be considered de facto censorship instead of moderation. And given how much Americans tend to dislike censorship, well…you can sort of figure out how well things would go for, say, Twitter if it had to stop “censoring” content.

    reply to this | link to this | view in thread ]

  21. icon
    Scary Devil Monastery (profile), 26 Mar 2020 @ 1:26am

    Re:

    "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."

    That sounds a bit far-fetched.

    Twitter may not have the right to ban people from association, but Twitter can still - like anyone else - choose not to provide user services on their own hardware for whoever they like.

    Last I checked the first amendment doesn't guarantee people the right to override property rights - because private property is still not abolished just because a corporation isn't protected.

    And finally, a corporation is itself property. There are named individuals who own the assets of said corporation. Giving a corporation the status of an individual only accomplishes one thing - it exculpates the owners from a great deal of malfeasance, ensuring that they can not be held responsible on many occasions where the corporation is guilty of wrongdoing.

    Corporations should NOT be given individual rights. Those rights (and the accountability of it) belong exclusively to the owners.

    reply to this | link to this | view in thread ]

  22. icon
    Scary Devil Monastery (profile), 26 Mar 2020 @ 1:33am

    Re:

    "Nothing that exists solely on paper--digital paper at that--has any Constitutional rights."

    Unfortunately there's a SCOTUS ruling on the books which claims otherwise - hence the big issues surrounding how the owner of a corporation can remain free of liability if the corporation he owns does some shady shit.

    "Anyone who says otherwise has a personal agenda to sub-serve their own interests exclusively and screw everyone else."

    Well, yes? It's not exactly secret that US corporations have spent tens of thousands of billable hours in lawyer and lobbying resources to obtain and ensconce such rights.

    And politicians from both sides, knowing that to relinquish the teat of campaign milk money they keep suckling on will scuttle their career, are heavily motivated not to make a fuss about it.

    reply to this | link to this | view in thread ]

  23. icon
    Stephen T. Stone (profile), 26 Mar 2020 @ 2:23am

    Fair points, to which I concede.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 27 Mar 2020 @ 5:53am

    Re: When?

    Legislatively speaking, never. It is all bench law. The U.S. courts invented the idea that corporations had personal rights, and have largely supported the idea that those rights preceed the rights of their customers and clients. Much like German courts decided that revenues from shipping, exceeded the importance of the cargo carried to gas chambers.

    reply to this | link to this | view in thread ]


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