• by Wendy Davis  @wendyndavis, February 18, 2020

Broadband carriers are suing to block a Maine privacy bill that requires Internet service providers to obtain consumers' opt-in consent before drawing on their web activity for ad targeting.

“Protecting customer privacy is a laudable objective that ISPs support,” the major broadband industry organizations write in a complaint filed Friday in U.S. District Court in Maine. “But Maine has not shown -- through evidence in the legislative record -- that ISPs’ privacy practices are causing any harm whatsoever to consumers.”

The measure, which was passed last year and is slated to take effect in July, largely re-creates a set of privacy rules passed in 2016 by the Federal Communications Commission, but revoked 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. The law also would prohibit 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's definition of “personal information” is relatively broad. It includes web-browsing history, precise geolocation information, IP addresses and device identifiers.

The bill only applies to companies that offer broadband access, like AT&T, and not to so-called “edge” companies like search engines or social networking platforms.

The organizations argue the law violates their free speech rights by restricting their ability to collect and use consumer data, but allowing other companies to freely gather information for ad purposes.

“Maine cannot discriminate against a subset of companies that collect and use consumer data by attempting to regulate just that subset and not others, especially given the absence of any legislative findings or other evidentiary support that would justify targeting ISPs alone,” ACA Connects -- America's Communications Association, CTIA -- The Wireless Association, NCTA -- The Internet & Television Association, and USTelecom -- The Broadband Association, write. "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 organizations also argue the measure is inconsistent with federal policy, given that Congress repealed the requirements that Maine enacted.

The broadband industry (and other business groups) have often argued that internet access providers shouldn't be subject to tougher privacy rules than companies like Facebook or Google.

But privacy advocates say there are good reasons to treat Internet service providers differently -- including that ISPs have comprehensive access to information about subscribers' web activity.