• by Wendy Davis , Staff Writer @wendyndavis, February 1, 2018

Lawmakers in California should move forward with a privacy law that would limit broadband providers' ability to serve targeted ads, the digital rights group Electronic Frontier Foundation says.

The privacy bill (AB 375), which stalled last September in the Senate, sought to recreate broadband privacy rules that were passed in 2016 by the Federal Communications Commission, but were repealed the following year by Congress. The bill would require Internet service providers to obtain consumers' opt-in consent before using their web-browsing information for targeted advertising, and would prohibit providers from charging higher fees to customers who reject targeted ads.

"Moving AB 375 in 2018 will send a clear signal to Washington DC that while the federal system stands down in the face of intense lobbying by the country’s largest ISPs such as Comcast, Verizon, and AT&T, the state of California will stand up for its residents’ legal right to privacy," Ernesto Falcon, legislative counsel at the EFF, says in a recent letter to state lawmakers.

Broadband providers lobbied heavily against that proposed privacy law, as did the Association of National Advertisers as well as tech companies including Google and Facebook.

The EFF is now telling lawmakers that broadband providers need to be curbed. The organization calls attention to a long pattern of questionable activity by providers. Among other examples, the group highlights including Verizon's recent tracking initiative that involved inserting headers -- 50-character alphanumeric strings -- injected into all unencrypted mobile traffic. The FCC fined Verizon $1.35 million over the headers.

"Nothing in recent history suggests that ISPs stand ready to respect user privacy where they are not legally required to do so," the EFF writes.

The digital rights group is also pressing state officials to restore net neutrality rules -- but says that any bill should be drafted with a view toward defeating future lawsuits by providers. To that end, the organization says that any bill should be focused on activity that occurs within California, as opposed to across the country.

Earlier this week, lawmakers in California's senate approved a bill aimed at requiring providers to follow net neutrality rules; the state assembly has not yet passed a companion measure.

California Senate Bill 460 would restore many of the open Internet regulations that were revoked late last year by the Federal Communications Commission. Among other restrictions, the bill would prohibit broadband providers from blocking or throttling lawful content, and from charging higher fees for prioritized delivery.

The EFF said this week that the bill may not hold up in court because judges may view the measure as an attempt by California to regulate commerce on a national level. "While well-intentioned, the legislators sadly chose an approach that is vulnerable to legal attack," Falcon writes in a blog post about the proposed bill.

The group is urging lawmakers to shore up the bill by directly tying the net neutrality requirement to other California regulations. "Today, California spends $100s of millions on ISPs, including AT&T, as part of its California broadband subsidy program," the EFF writes. "The state could require that recipients of that funding provide a free and open Internet, to ensure that taxpayer funds are used to benefit California residents rather than subsidizing a discriminatory network."

California isn't the only state poised to take on the broadband industry. Already this year, the governors of New York and Montana issued executive orders requiring providers to follow net neutrality principles as a condition of obtaining state contracts. What's more, at least 18 other states are reportedly considering issuing their own net neutrality rules.

If California is able to pass a bill that withstands a legal challenge, the language could serve as a model for other statehouses throughout the country.

"It is our hope that California’s legislators understand that the millions of Americans who are fighting hard to keep the Internet free and open expect elected officials that side with us to deploy their power wisely and effectively," Falcon writes. "The importance of keeping the Internet free and open necessitates nothing less."