Today, Access Now and New America’s Open Technology Institute, represented by Georgetown Law’s Institute for Public Representation, filed an amicus brief in the internet service providers’ (ISPs) challenge to the Maine broadband privacy statute. The brief is in support of the state of Maine and of upholding the statute.
The amicus brief argues that ISPs continue to hold a privileged position on the network that gives them access to extensive information about their customers, who must share this information with their ISP to use the service. The data ISPs hold (like browsing and app usage history) is personal, private, and could be reused for potentially harmful purposes. Thus, regulatory intervention is necessary to protect user data from abuse.
“Maine’s broadband privacy law is eminently reasonable given the extent to which ISPs have access to customer data and the nefarious purposes for which that data could be leveraged,” said Eric Null, U.S. Policy Manager at Access Now. “The ISPs attempt to distract from the issue at hand by claiming they are being unfairly targeted relative to other platforms in the online ecosystem. The argument ignores the facts underlying this case, which are that ISPs collect and retain significant amounts of personal data that can harm people, especially those most at risk, if not regulated. The court should uphold the statute.”
For a brief period of time in early 2017, broadband customers in the U.S. expected to gain some additional privacy protections thanks to the Federal Communications Commission’s broadband privacy rule. Unfortunately, the Republican-led Congress and president decided to repeal those additional privacy protections before they ever went into effect.
As a result, states had to step up to protect ISP customer privacy, and Maine was the only state to successfully pass an ISP privacy law. Of course, ISPs challenged the law on a variety of bases, including that it is unconstitutional, preempted, and unnecessarily singles out and burdens the broadband industry.
**Note: The link to the amicus brief was updated on June 2, 2020.