ISPs Sue to Block Maine Privacy Law

A group of four trade associations representing internet service providers (ISPs) and telecommunications companies has sued the Attorney General of Maine and the Commissioners of the Maine Public Utility Commission in an attempt to block a privacy statute set to go into effect on July 1. ACA Connects – America’s Communication Association, CTIA – The Wireless Association, NCTA – The Internet & Television Association, and USTelecom – The Broadband Association argued that the new law blocks their First Amendment rights.

According to a statement from Maine Governor Janet Mills’ office announcing the signature of the measure, 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 law also prohibts internet service providers from altering service or offering incentives to users that do or do not opt-in.

The plaintiffs alleged that the statute unlawfully infringes on their First Amendment rights. The restrictions, they argue, unfairly burden ISPs while leaving other actors in the internet economy unregulated. They added that the targeted marketing that ISPs conduct is actually beneficial to the consumer because more relevant advertisements can be provided. Because the restriction purportedly discriminates based on both the speaker and the content of the speech, the plaintiffs argued that “strict scrutiny” analysis applies. Under the standard set form by the plaintiffs, the restriction “cannot survive strict scrutiny because Maine cannot ‘prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.'”

The trade associations also argued that the law is unconstitutionally vague and is preempted by federal law. In favor of preemption, the plaintiffs cited Congress’ invocation of the Congressional Review Act to overturn a privacy rule enacted by the FCC. They additionally referred to the FCC’s subsequent determination that the best approach to regulate ISPs was to defer to existing privacy disclosures and FTC oversight.

The case, held before Judge Lance Walker of the District of Maine, is not the only recent attempt by the telecommunications industry to fight regulations in Maine. Comcast, and others, won a preliminary injunction against a new Maine law that would require cable providers to offer channels a la carte, as opposed to in bundles. The state is set to appeal that decision.