ISPs Sue Maine, Saying Privacy Law Violates Their Free Speech

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A Maine privacy law scheduled to go into effect on July 1, 2020 that will require ISPs to get opt-in permission before using or collecting the browsing history of internet users. The ISPs are now suing the state, saying that the law violates their free speech rights (via ArsTechnica).

Maine Privacy Law

Governor Janet Mills signed the privacy bill [PDF] into law in June 2019. It forces ISPs to get opt-in consent before they can share customer data:

[The bill] prohibits a provider of broadband Internet access service from using, disclosing, selling, or permitting access to customer personal information unless the customer expressly consents to that use, disclosure, sale or access. The legislation also prohibits a provider from refusing to serve a customer, charging a customer a penalty or offering a customer a discount if the customer does or does not consent to the use, disclosure, sale or access of their personal information.

The types of data this law protects Includes IP addresses, browsing history, financial  data, health data, device identifiers, location data, and more. Many ISPs and carriers  use this data for advertising. The lawsuit [PDF] states in part:

The Statute violates the First Amendment because, among other things, it: (1) requires ISPs to secure “opt-in” consent from their customers before using information that is not sensitive in nature or even personally identifying; (2) imposes an opt-out consent obligation on using data that are by definition not customer personal information;

(3) limits ISPs from advertising or marketing non-communications-related services to their customers; and (4) prohibits ISPs from offering price discounts, rewards in loyalty programs, or other cost- saving benefits in exchange for a customer’s consent to use their personal information.

Although the ISPs claim the law is in conflict with the FCC’s position that ISP privacy practices shouldn’t be regulated differently than other online businesses, judges also ruled that the agency doesn’t have the legal authority to overturn states’ authority to regulate these types of communication.

Further Reading

[Broadband Companies Want FCC to Hide Data on Internet Speeds]

[FCC Unsure Whether to Punish Carriers for Selling Location Data]

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