Big Telecom Say It Has First Amendment Right to Sell Your Private Data

After lobbying to kill consumer privacy rules at the federal level, big telecom is now taking aim at individual state efforts to protect your privacy online. Last June, Maine passed a new law intended to protect broadband user privacy. The law demands ISPs clearly disclose what data is collected and who it’s sold to, requiring that users opt in to the sale of sensitive location or financial data. The law also bans ISPs from charging you extra if you want your privacy protected, a practice AT&T engaged in for years. But this week the broadband industry sued the state of Maine, claiming that the law violates the industry’s free speech rights. According to the industry’s lawsuit, Maine’s law “imposes unprecedented and unduly burdensome restrictions on ISPs' protected speech." “Maine's decision to impose unique burdens on ISPs' speech—while ignoring the online and offline businesses that have and use the very same information and for the same and similar purposes as ISPs—represents discrimination between similarly situated speakers that is impermissible under the First Amendment,” the lawsuit claimed. But telecom experts say the industry’s grasping at straws as it attempts to dodge accountability for a decade rife with telecom related privacy abuses. “Big broadband is clearly trying untested First Amendment arguments in the hope that something sticks,” former FCC lawyer Gigi Sohn told Motherboard. “Since when does giving consumers a right to control their personal information become an unconstitutional limitation on broadband companies' speech?” Sohn asked. “And since when are broadband companies a protected class deserving of special legal protection from so-called discrimination?”

Sohn noted that the lawsuit, first spotted by Ars Technica, is part of a much broader effort by the industry to eliminate all meaningful state and federal consumer protections. It’s a gambit that has been hugely successful so far. With the press and public justifiably focused on the numerous problems with “big tech” monopolies, big telecom is quietly getting a free pass to engage in all the same (or worse) behaviors. In 2017, telecom lobbyists convinced the Trump FCC to not only kill net neutrality, but eliminate most of the FCC's telecom consumer protection authority. As a result, the FCC’s apathy let ISPs engage in behavior like charging consumers rental fees for modems they already own, or jacking up subscriber bills via a bevy of bogus fees and surcharges. At the same time, the telecom sector has fought tooth and nail against the passage of federal privacy rules of any kind, Sohn said. In 2017, telecom lobbyists convinced the Senate to scuttle FCC broadband-specific privacy rules before they could even take effect. Sohn, who helped craft those protections, say they would have gone a long way in preventing or reducing the abuse of wireless user location and other consumer data. In response to federal apathy, states including Washington, California, and Maine passed their own privacy and net neutrality laws. And while the industry has complained repeatedly that this created a confusing “patchwork quilt” of state consumer protections, Sohn said it’s a problem the industry itself created. “The so-called ‘problem’ of state broadband privacy laws like Maine’s is one of the ISPs own making,” Sohn said. “They asked Congress to repeal the FCC’s modest and popular 2016 broadband privacy rules, got their wish, and now are upset that states want to fill the gap.” Telecom lobbyists even convinced the FCC to include a provision in its net neutrality repeal banning states from protecting consumers. But the courts recently shot those efforts down, saying the FCC effort exceeded the agency’s authority. Sohn said with the FCC effectively giving up on consumer protection, it’s well within states’ rights to step in. Blake Reid, Associate Clinical Professor at Colorado Law, told Motherboard the industry’s lawsuit is another example of the sector trying to have its cake and eat it too. “It is bad enough that ISPs lobbied to repeal the FCC’s robust broadband privacy rules; they now have the temerity to pretend that the near-total vacuum of privacy protections for ISP customers at the federal level constitutes some kind of ‘uniform’ federal approach to privacy with which Maine’s law could conflict,” Reid said.

With former Verizon lawyers now in charge of both the FCC (Ajit Pai) and DOJ (Bill Barr), the federal government has further aided the telecom sector by suing states like California for attempting to protect consumers on issues like net neutrality. “It should be no surprise to ISPs that states like Maine have stepped in to fill the void, and ISPs can hardly claim that having to protect their customers’ privacy conflicts with their non-obligations to do essentially nothing at all under federal law,” Reid said. In short the telecom sector not only gets to enjoy little to no competition in broadband, the industry has waged an all out war to effectively eliminate all state and federal oversight of one of the most broken and disliked industries in America. What could possibly go wrong?