Comcast, AT&T Sue Maine Over Privacy Law, Claim It Violates Free Speech

Back in 2017, the telecom industry successfully lobbied Congress to kill some modest FCC privacy rules before they could even take effect. The rules simply required that ISPs be more transparent about what data they collect and who they sell it to, requiring that consumers opt in to the sale of more sensitive location data (financial, location). From there, the telecom lobby proceeded to convince the FCC to effectively neuter its consumer protection authority almost entirely. Not only that, it successfully lobbied the FCC to try and ban states from stepping in and protecting consumers -- though the courts (so far) didn't look too kindly upon that.

In short the telecom sector lobbied to kill federal oversight, resulting in a lot of states now rushing in to try and fill the void. It then proceeded to cry like a toddler about a "discordant and fractured framework of state protections," hoping you'd ignore this was a problem the sector created.

Case in point: the telecom sector has now stepped in to sue Maine for attempting to pass a new privacy law that closely mirrors the FCC's discarded 2017 rules. According to a coalition of telecom lobbying organizations, Maine's law violates AT&T, Verizon, Comcast, and Spectrum's First Amendment rights:

"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. 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."

Maine's law was signed by Governor Janet Mills last June, and is scheduled to take effect on July 1, 2020. The law not only requires that consumers opt in before sensitive data is collected and sold, but it also attempted to ban ISPs from charging broadband subscribers even more money to opt out of snoopvertising, something AT&T engaged in for years. Again, Maine's law, like the laws popping up in other states, wouldn't exist if the telecom sector hadn't lobbied to effectively obliterate modest federal FCC rules. And again, this is a problem the sector created by trying to have its cake and eat it too.

One of the key arguments underpinning most of the telecom sector's lobbying shenanigans of late involves one central claim: that state or federal efforts to hold giant ISPs accountable somehow violates Comcast and other ISPs' First Amendment rights. You'll recall ISPs tried to claim that net neutrality also somehow violated ISPs' free speech rights, despite the fact that as simple conduits they don't engage in "editorial" decisions, making the argument rather silly. Effectively, the industry has spent a decade trying to claim that any federal or state consumer protections violate ISPs' free speech rights and therefore shouldn't exist.

All the while, the industry falsely claims it really wants meaningful privacy guidelines. In reality, what the industry wants is either no privacy guidelines at all (pretty much what we've "enjoyed" for 20 some odd years now), or weak federal guidelines their lawyers get to write -- so flimsy and loophole filled that they don't do much of anything. Well, anything except pre-empting other better state or federal privacy laws written with something vaguely resembling a consensus.

While everybody fixates on "big tech," "big telecom" is effectively gutting all meaningful oversight of a quickly consolidating sector that was already an anti-consumer, anti-innovation, and anticompetitive mess. Gosh, wonder how that's going to turn out?