Broadband Carriers Withdraw Challenge To Maine Opt-In Privacy Law

Broadband lobbying organizations on Friday abruptly withdrew a lawsuit challenging Maine's opt-in privacy law, which requires internet service providers to obtain users' explicit consent before using web browsing data for ad targeting.

The move brings an end to a legal battle dating to 2020, when four industry groups (ACA Connects -- America's Communications Association, CTIA -- The Wireless Association, NCTA -- The Internet & Television Association, and USTelecom -- The Broadband Association) sued to strike down the law.

The organizations argued that the law violates the First Amendment because it only restricts broadband carriers' ability to collect and use data, but allows other types of online companies -- including search engines and social networking services -- to gather information for ad purposes.

The NCTA said it is dropping the matter for several reasons, including that no other states have followed Maine's lead in passing a privacy law that treats broadband carriers differently than other companies.

“Five states -- California, Colorado, Connecticut, Utah, and Virginia -- plus the federal government have taken the exact opposite approach and have either adopted or are considering privacy regulations that apply equally and uniformly to all businesses that operate on the internet,” the group said through a spokesperson.

“Bipartisan privacy bills in Congress and the Federal Trade Commission’s recently released Advance Notice of Proposed Rulemaking on privacy propose a comprehensive regime that would apply to all businesses,” the organization added. “With these key developments in mind, NCTA has decided to end this litigation and focus our efforts on promoting more reasonable and effective bipartisan privacy legislation that applies universally to all stakeholders.”

Maine passed its broadband privacy law in 2019, and it took effect the following year. The measure largely recreates a set of privacy rules that were passed by the Federal Communications Commission in 2016, but invalidated by Congress the following year.

The Maine law specifically 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.

When the carriers filed suit, they sought an injunction that would have prohibited enforcement.

U.S. District Court Lance Walker in Bangor rejected that request in July of 2020, but allowed the groups to develop more evidence to support their claim that the law is unconstitutional.

Walker said at the time it would be premature to block the law without more evidence about whether there were valid reasons to subject broadband carriers to tougher privacy standards than “edge” providers such as search engines or social networking services.

Outside groups including Public Knowledge, the ACLU and the Knight First Amendment Institute at Columbia University filed friend-of-the-court briefs opposing the carriers' request to block the law.

Privacy advocates have generally argued there are good reasons to impose stringent privacy rules on broadband access providers -- including that broadband carriers have comprehensive access to information about people's web use.

Harold Feld, senior vice president at Public Knowledge, said Friday that the group has always maintained that internet service providers, like telephone operators, should be required to follow stringent privacy rules.

“Secure communications requires that the conduit be secure,” he said. “The oldest laws of privacy have to do with protecting the confidentiality of communications.”

He added that Public Knowledge was pleased that internet service providers "will no longer continue to fight Maine's decision to provide privacy protections for its citizens."

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