Telecom Industry Drops Complaint Against Maine ISP Privacy Law
The broadband industry will shift attention to passing a national privacy law, after dropping a lawsuit against Maine, said telecom and cable associations Tuesday. Plaintiffs USTelecom, NCTA, CTIA and ACA Connects decided not to continue a nearly 2-year-old challenge of the state’s ISP privacy law. Maine Attorney General Aaron Frey (D) said the state law’s survival is important for protecting consumers. The case’s end should encourage more states to act, said consumer privacy advocates in interviews.
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Maine and the four telecom associations “hereby stipulate to the dismissal of this action without prejudice,” they said in a joint stipulation Friday at the U.S. District Court of Maine (case 1:20-cv-00055). Industry agreed to reimburse the state for about $55,000 in attorney costs, Frey’s office said.
The telecom industry groups sued in February 2020 to challenge the 2019 Maine law, which countered Congress’ 2017 Congressional Review Act (CRA) repeal of 2016 FCC broadband privacy rules. In July 2020, Judge Lance Walker denied industry plaintiffs' motion for judgment on the pleadings and ruled Maine’s law isn’t preempted by the FCC or Congress (see 2007070053). Maine told the court last month it was ready to move forward with a summary judgment motion on remaining First Amendment issues (see 2208240059).
“With states like Maine adopting an ineffectual and fractured approach to privacy, we have opted to direct our resources towards working with Congress to develop a federal approach that protects all Americans with one set of privacy rules, nationwide, that applies to every type of business and every type of data,” the telecom groups said.
“Since our lawsuit was filed in 2020, no other state has followed Maine’s example,” added an NCTA spokesperson: Five state laws and a bipartisan bill in Congress took “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.” Rather than continue to litigate Maine, NCTA will “focus our efforts on promoting more reasonable and effective bipartisan privacy legislation that applies universally to all stakeholders.”
Maine lawmakers were wise to restrict disclosure and use of consumers’ personal information, said AG Frey. “Despite the army of industry lawyers organized against us, my office vigorously defended the law not only for the benefit of Maine residents, but also to pave the way for other states that can now follow Maine’s lead.”
Industry’s decision “reflects an increasing acknowledgment by courts and state officials and even the industry that, in an era where the FCC has abdicated its responsibility over protecting consumers online,” states can and should step in, said Cody Venzke, senior counsel for Center for Democracy & Technology’s Equity in Civic Technology Project. Venzke said to expect more privacy bills coming at state and federal levels. States will adopt a variety of approaches, but they now seem more likely to seek policies that apply to more businesses than just ISPs, he said: “Given the importance of privacy across all aspects of our lives, that general approach is a more appropriate one.”
It's good industry “decided to stop wasting everybody’s time and resources fighting consumer privacy,” said Public Knowledge Senior Vice President Harold Feld. “This case is an excellent example of why we should continue to allow the states to develop their own rules in addition to having a strong national privacy law.” It should give other states more confidence they aren’t legally preempted from making privacy rules, said Feld: “It’s worth it to hang in and keep fighting.” Other states are more likely to pursue comprehensive rather than ISP-focused rules, he said.
Maine having its own restrictions shows the need for “a federal law that preempts inconsistent state laws so ISPs don’t confront a patchwork of state laws with varying requirements,” said Free State Foundation President Randolph May. “The costs imposed by such a state patchwork outweigh any benefits, not to mention the sheer confusion created among consumers by protections and obligations that differ from state to state.”
“ISPs realized they have bigger battles ahead to keep even more cumbersome privacy proposals from becoming law and decided to reallocate resources to those fights,” emailed Lincoln Network Policy Counsel Jonathon Hauenschild: “States really are starting to move on consumer privacy standards and Maine's law is somewhat tame when compared to” California or the European Union’s laws. But Hauenschild would have liked to fully litigate the constitutional questions, he said. “From the lawyer's perspective, unless, and until, the Supreme Court takes a similar case up, the Circuit Courts may split and ISPs find themselves having to apply different standards in different regions of the country.”