Today, Judge Lance Walker of the U.S. District Court for the District of Maine, ruled that Maine’s broadband privacy law is not pre-empted by Congress’ repeal of the FCC’s 2016 broadband privacy rules or the FCC’s repeal of the 2015 net neutrality rules. He also found that the ISPs had not shown that Maine’s law violates the First Amendment or that it is unconstitutionally void for vagueness under the 14th Amendment. With regard to the First Amendment claim, Judge Walker described it as a “shoot-the-moon” argument and said that “[l]ike Harold with a purple crayon, Plaintiffs have drawn themselves a steep mountain to climb….” The case, ACA v. Frey, will now move to discovery, and possibly a trial thereafter.
The following statement should be attributed to Gigi Sohn:
Judge Walker was right to conclude that the absence of federal broadband privacy rules cannot serve as the basis for pre-empting Maine’s state broadband privacy rules. This is exactly what the DC Circuit found in the court challenge to the FCC’s repeal of the net neutrality rules (Mozilla v. FCC), which has allowed for states like California, Vermont and Washington to pass laws protecting Internet users from anticompetitive and anti-consumer practices by broadband providers.
While Judge Walker allowed the broadband industry’s argument that the Maine law violates the First Amendment to proceed, he ruled that the law is not unconstitutional on its face and clearly expressed skepticism that the industry would succeed at trial. Judge Walker refused to apply a strict scrutiny standard to the law, instead applying an intermediate First Amendment scrutiny that applies to commercial speech. He also firmly rejected broadband providers overwrought allegations of harm.
If the broadband providers prevail at trial and beyond, the future of national and state privacy laws will be at risk, as will nearly any attempt to protect consumers and competition in the broadband market. Judge Walker’s decision is a good first step towards deflating the providers’ “shoot-the-moon” attempt to use the First Amendment as a deregulatory tool.
Gigi Sohn is a Distinguished Fellow at the Georgetown Institute for Technology Law and Policy and a Benton Senior Fellow and Public Advocate. She served as Counselor to Former FCC Chairman from November 2013-December 2016. While at the FCC, she worked on the 2016 Broadband Privacy Rules. She testified before the Joint Committee on Energy, Utilities and Telecommunications of the Maine Legislature on April 24, 2019 in support of the bill. Her oral and written testimony can be found here and here. Last week, Gigi and her Georgetown Law colleague Jeff Gary wrote about ACA v. Frey and its broader implications for privacy laws and legislation for Techdirt.