ISPs sue Maine; claim their First Amendment right to free speech allows them to sell your internet history

Internet service providers (ISPs) are taking the state of Maine to court over an internet privacy law that the ISPs do not want to follow. The lawsuit was first reported on by ArsTechnica’s Jon Brodkin. Back in 2017, Maine legislatures on every side of the bench came together to propose a law that forbade ISPs from selling the internet activity and history of its constituents. An iteration of this effort finally came to fruition in 2019, when Maine’s governor signed an internet privacy law that will take effect starting July 1, 2020. Unfortunately for the rest of America, the telecom industry was given the right to further monetize their users by selling information on what you do online to third parties. Maine specifically asked for ISPs to make this behavior opt-in instead of opt-out as it currently is federally. The spirit of the law is clear. The law:

“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 lawsuit’s plaintiffs are America’s Communications Association, the Cellular Telecommunications and Internet Association (CTIA), NCTA – The Internet & Television Association, and USTelecom. The lawsuit highlights that ISPs believe that this simple requirement and respect for privacy “imposes unprecedented and unduly burdensome restrictions on ISPs’ protected speech.”

The lawsuit claims that Maine cannot target ISPs alone – suggesting that everyone else should be subject to the same laws otherwise it’s a free speech violation. Specifically, the lawsuit claims:

“Maine cannot discriminate against a subset of companies that collect and use consumer data by attempting to regulate just that subset and not others, especially given the absence of any legislative findings or other evidentiary support that would justify targeting ISPs alone. Maine’s decision to impose unique burdens on ISPs’ speech—while ignoring the online and offline businesses that have and use the very same information and for the same and similar purposes as ISPs—represents discrimination between similarly situated speakers that is impermissible under the First Amendment.”

ISPs show they are willing to sue states seeking to protect broadband privacy

After the federal government did away with broadband privacy protections at the federal level, there was an understandable rush of states trying to protect their citizens’ internet privacy from being monetized upon by ISPs. This push happened all over the country from New York, to Massachusetts, to Washington, to Nevada, New Jersey, and Montana, California, and even Minnesota. These state level attempts to protect internet users from their ISPs had varying degrees of success. Maine’s is the first such law to come into effect in summer of 2020 and the ISP lobby has brought out their big guns to argue that there’s nothing wrong with ISPs taking private data and browsing habits from paying consumers and selling them to unscrupulous marketing firms. It’s no wonder that Americans continue to take internet privacy into their own hands as protections at the federal level fall, and protections at the state level either don’t exist or are being challenged.

Former FCC lawyer Gigi Sohn explained the situation to Motherboard:

“Big broadband is clearly trying untested First Amendment arguments in the hope that something sticks,”

Colorado Law Professor Blake Reid commented to Motherboard about how ridiculous it is that the ISPs think they can take away broadband privacy entirely:

“It is bad enough that ISPs lobbied to repeal the FCC’s robust broadband privacy rules; they now have the temerity to pretend that the near-total vacuum of privacy protections for ISP customers at the federal level constitutes some kind of ‘uniform’ federal approach to privacy with which Maine’s law could conflict.”

ISPs will try anything to make sure they can still make money selling your internet history

Using free speech as an argument maybe can be seen as a hail mary attempt to take down broadband privacy at the state level, but remember that there are a lot of states and the ISPs have a lot of money to push this ridiculous narrative. Where did they get that money from? From selling sensitive information from your internet usage history to third parties. It’s not just marketers that get this information – once it’s out there it can be taken by hackers, or requested by the government. Internet privacy from the last mile providers of internet themselves is sorely needed as a policy – but failing that, it’s no wonder that internet users take matters into their own hands by using VPNs. The ISPs have shown that this is a hill they’re ready to fight on, and it’s no wonder given they make so much money from it.