Will Maine's New Strict Internet Privacy Law Conflict With the FCC?
By Sun Journal
Maine internet service providers will face the strictest consumer privacy protections in the nation under a bill signed Thursday by Gov. Janet Mills, but the new law will almost certainly be challenged in court.
Several technology and communication trade groups warned in testimony before the Legislature that the measure may be in conflict with federal law and would likely be the subject of legal action.
The new law, which goes into effect on July 1, 2020, would require providers to ask for permission before they sell or share any of their customers' data to a third party. The law would also apply to telecommunications companies that provide access to the internet via their cellular networks.
"The internet is a powerful tool, and as it becomes increasingly intertwined with our lives, it is appropriate to take steps to protect the personal information and privacy of Maine people," Mills said after signing the bill into law. "With this common-sense law, Maine people can access the internet with the knowledge and comfort that their personal information cannot be bought or sold by their ISPs without their express approval."
The law is modeled on a Federal Communications Commission rule, adopted under the administration of President Barack Obama but overturned by the administration of President Donald Trump in 2017. The rule blocked an ISP from selling a customer's personal data, which is not prohibited under federal law.
State Sen. Shenna Bellows, D-Manchester, the sponsor of the new law, said Maine was taking a leading role when it came to protecting online consumer privacy.
"Mainers need to be able to trust that the private data they send online won't be sold or shared without their knowledge," Bellows said. "This law makes Maine first and best in the nation in protecting consumer privacy online."
The law is unlike any in the nation as it requires an ISP to obtain consent from a consumer before sharing any data. Only California has a similar laws on the books, but it requires consumers to "opt out" by asking their ISP to protect their data.
Maine's new law does not allow an ISP to offer a discounted rate to customers who agree to share or sell their data.
Opponents to the law, including several coalitions of the nation's leading telecommunication and technology sector companies, have argued it is in conflict with the FCCs rules and could also be a violation of U.S. Constitution's interstate commerce clause, which prohibits any one state from regulating industries that do business across state lines.
"No other state has passed language similar to that contained in LD 946, and Maine should avoid being the first to attempt to regulate an interstate service," wrote Christina Fisher, the executive director in the Northeast for TechNet, a coalition of 84 technology companies in the U.S. Fisher, in written testimony opposing the law. She said broadband service is critical to e-commerce, especially in rural states like Maine.
Fisher said creating different standards in Maine "risks disrupting a significant portion of the state 's innovation economy and would have major unintended consequences for consumers and businesses as ISPs are forced to adjust their investment and technology deployment plans based on a singular set of rules for the state."
Fisher did not respond to a request for comment on passage of the law Thursday.
The Maine bill passed with with strong bipartisan support in the Legislature including a unanimous vote in the state Senate, despite an intense and expensive lobbying effort by the technology and communications sectors .
UStelecom, a large coalition of broadband providers that includes some of the nation's largest telecommunications companies, including AT&T and Verizon, argued that the law could be unconstitutional in a number of ways.
In written testimony to the Legislature, UStelecom's Patrick Halley wrote the bill could even be in violation of the First Amendment, "..by discriminating against ISPs speech relative to online actors that use and disclose the same information."
A similar argument was made by the Maine State Chamber of Commerce, which also opposed the law, saying it did not go far enough because it did not seek to regulate other entities that harvest private data from their online users, including Facebook and Google.
Halley said by only targeting ISPs the law is in conflict with federal policy which clearly favors a "technology-neutral" approach to privacy obligations.
Halley did not respond to a request for comment Thursday.
But Maine Attorney General Aaron Frey, who would be tasked with defending the law were if it were challenged in federal court, offered his support for the new law in his testimony to the Legislature.
"The state has a significant interest in protecting Maine consumers from practices that may compromise their personal data, or which place their financial well-being at risk," Frey said. "This interest includes ensuring that consumers are made fully aware of business practices which profit from data they may prefer to be kept private."
(c)2019 the Sun Journal (Lewiston, Maine)