One of the most important privacy cases you’ve never heard of is being litigated right now in a federal district court in Maine. ACA v. Frey is a challenge by the nation’s largest broadband Internet access providers to a Maine law that protects the privacy of the state’s broadband Internet users. If the broadband providers prevail, this case could eliminate sector-specific privacy laws across the nation, foreclose national privacy legislation, and have broad implications for broadband regulation generally.
In May 2019, the Maine legislature overwhelmingly passed LD 946, “An Act to Protect the Privacy of Online Consumer Information.” The law largely tracks the now-repealed FCC’s 2016 broadband privacy rules, requiring broadband providers to obtain customer consent before disclosing, selling or otherwise using customer personal information. When the Maine bill was being considered, broadband providers complained that the law didn’t apply to online companies like Google, Facebook, and Amazon. If everyone was treated the same, they claimed, they would support privacy legislation.
But the industry’s lawsuit shows that its true intent is to avoid privacy regulation of any kind. Instead, they claim that giving consumers any control over their own data violates the First Amendment rights of the broadband providers to market goods and services. The industry also claims that by targeting only broadband providers, and not edge providers or any other company, 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.”
The court should reject these arguments. Should it accept them, 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.
More at Tech Dirt.