• by Wendy Davis  @wendyndavis, June 13, 2016

Jeff Flake, a Republican senator from Arizona, is urging Federal Communications Commission Chairman Tom Wheeler to back away from "onerous" privacy rules that would require broadband providers to obtain consumers' opt-in consent before using data about their Web-surfing activity for ad targeting.

Flake argues in a letter sent to Wheeler last week that the rules would violate Internet service providers' free speech rights. "The use of customer information for marketing purposes by ISPs is non-misleading protected commercial speech," the lawmaker writes.

Last month, Flake unsuccessfully asked Wheeler to delay the timeline for considering the new rules. He now argues that targeted ads are protected by the First Amendment, and that restricting the use of data for behavioral advertising "presents constitutional problems."

Flake elaborates that the FCC hasn't justified its proposed rules by showing why they further a government interest.

He also says that any threat posed to privacy by ISPs is "wholly theoretical."

"Like the thousand-eyed Argus of mythology, ISPs are supposed to be the all-seeing watchmen of our personal information, according to the FCC's view," he writes.

"But this alleged threat to privacy is wholly theoretical. The FCC points to no patterns of abuse by ISPs of their customer information, let alone the kind of particularized abuse that could properly rise to a significant, government interest."

This is not the first time that critics have argued that restrictions on behavioral advertising might violate companies' rights. In 2008, the Newspaper Association of America argued that a Federal Trade Commission proposal for voluntary privacy standards could infringe companies' free speech rights. Those potential guidelines called for companies to allow consumers to opt-out of most forms of behavioral advertising, and to obtain opt-in consent before using "sensitive" data, including information about health conditions or sexual orientation, for targeted ads.

The NAA argued at the time that ads are a form of speech, and that it has the right to serve them, provided that they are not misleading. Ads displayed to readers based on their online behavior are "not only truthful advertising speech, but advertising speech that meets their interest," the group wrote in its filing. The following year, the group retreated somewhat and voiced support for the idea that Web companies should voluntarily allow users to opt out of online behavioral targeting.