Maine Broadband Privacy Law Doesn't Violate First Amendment, Free Speech Advocates Say

A free speech advocacy group is urging a judge to uphold Maine's new privacy law, which requires Internet service providers to obtain people's consent before using web-browsing data to target ads.

“The protection of privacy is often crucial to free speech,” the Knight First Amendment Institute at Columbia University writes in a friend-of-the-court brief filed this week with U.S. District Court Judge Lance Walker in Bangor.

The organization is weighing in on a challenge to the law by broadband lobbying groups that contend it violates the First Amendment by restricting Internet service providers' ability to access information. The groups, including ACA Connects -- America's Communications Association, CTIA -- The Wireless Association, NCTA -- The Internet & Television Association, and USTelecom -- The Broadband Association, are asking Walker to strike down the measure.

The Knight First Amendment Institute at Columbia University is among several outside organizations that are asking Bangor to reject the broadband industry's argument.

“Not every law that regulates the commercial exchange of data should be understood as a law that regulates speech,” the Knight Institute writes.

Maine's law -- passed last year and slated to take effect in July -- largely re-creates a set of privacy rules passed in 2016 by the Federal Communications Commission. Those rules were revoked by Congress in 2017, before they took effect.

The Maine statute prohibits broadband carriers from “using, disclosing, selling or permitting access to customer personal information” without people's explicit consent. It also prohibits carriers from either refusing service to people who don't consent to tracking or charging different rates to people based on whether they consent to tracking.

The measure only applies to companies that offer broadband access, like Comcast and AT&T, as opposed to search engines, social networking platforms and other so-called “edge” providers.

The Knight Institute argues that Maine's law doesn't regulate “expressive” speech, and therefore doesn't violate the First Amendment.

“Customers do not exchange their data to convey a message to their ISPs, to promote public discussion, or to filter new information into the public domain,” the Knight Institute writes. “Instead, they exchange their data solely to facilitate the provision of a service, and they have no choice but to rely on the ISPs to handle their data for the purposes of that service.”

The organization contends that Internet service providers should be viewed as comparable to the U.S. Postal Service, which doesn't claim a First Amendment right to read the contents of mail it transmits.

“A person who takes a letter to the post office to be mailed does not intend the transfer of the letter to the post office to express anything to the post office, though she of course intends to express a message to the letter’s recipient,” the Knight Institute writes. “The transfer of the data to the post office ... is a purely functional one, meant to facilitate the provision of a service.”

Other organizations asking Walker to uphold the law include the ACLU, Electronic Frontier Foundation, Public Knowledge, Access Now and New America's Open Technology Institute.

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