ISPs cite First Amendment as reason why they can sell customer data

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Internet service providers are fighting attempts to require customers opt in to having their location and other sensitive data sold to third parties, under the claim such laws violates the free speech rights of the companies involved.



The broadband industry has objected to a law in Maine passed last June that intended to protect the privacy of customers. In a lawsuit filed on Friday, the industry is suing the state to revoke the law for free and protected speech reasons.

The law requires internet service providers to inform of the types of user data it collects, as well as other companies that buy the data from the ISPs. It is also mandated that customers must opt in to allowing the ISP to sell the data, which could include location information, browsing data, and health and financial data, to third-party firms.

It also stops ISPs from penalizing customers who do not opt in, such as by charging extra fees on top of their existing bill, to offset the loss of revenue from the sale of the data. This is a practice AT&T is known to have performed for a number of years, under the guise of it allowing them to "discount" bills.

The lawsuit from the ISPs claim Maine's law "imposes unprecedented and unduly burdensome restrictions on ISPs' protected speech," reports Ars Technica. At the same time, the law doesn't make similar demands of other companies providing online services, such as Apple and Google, which are free to perform similar data collection without the requirement to inform beforehand.

"Maine cannot discriminate against a subset of companies that collect and use consumer data by attempting to regulate just that subset and not others," the suit states. It continues "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 First Amendment violation is due to how it limits an ISP from marketing "non-communications-related services" to customers, as well as stopping the offering of price discounts and other "cost-saving benefits" in exchange for a consumer's consent to use a user's data.

It is also claimed the state law violates the Constitution's Supremacy Clause, which allows federal laws to have priority over conflicting state versions.

The suit lists its plaintiffs as ACA Connects, CTIA, NCTA, and USTelecom, a collection of associations representing ISPs. The plaintiffs include Maine state attorney general Aaron Frey, Maine Public Utilities Commission chairman Philip L. Bartlett, and MPUC commissioners Randall Davis and Bruce Williamson.

The sale of data has become a hot topic for privacy advocates in recent years, where the practices of tech companies harvesting and then selling user data to other firms has come under fire. Recent examples of the practice includes Wacom's drivers harvesting data that is passed on to Google, and the active collection of data by the Avast antivirus suite for sale to marketing firms.

Apple's stance on consumer privacy is that it should not have access to the data where possible, including obfuscating the data to make it unidentifiable and only acquiring the minimum amount of data required to perform a task. Encrypting data is also a key element of Apple's stance, one that has led to its involvement in a long-running debate over its use and government demands for the implementation of backdoors.
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Comments

  • Reply 1 of 37
    ‘We think we’re legally able to treat our customers like **** therefore we will fight for the right to do so’. 
    redgeminipaBeatstmayagilealtitudenetmagen2itivguyStrangeDaysmuthuk_vanalingamolsjbdragon
  • Reply 2 of 37
    taddtadd Posts: 136member
    The North Carolina Department of Motor Vehicles sells our data.  Why can't the ISPs? The reason the ISPs shouldn't share data about us is that we don't like it, and when one of the ISPs tells us the will NOT sell our data, then we'll switch to that ISP?  That makes sense.  The NCDMV doesn't have to compete with anybody so we're screwed.  But we don't have to put up with an ISP which doesn't respect us if some other enterprising ISP can service us with bandwidth AND respect.    Here's an opportunity for StarBand or OneWeb or something else to help us?  I'm not sure that's economical against ATT, Verison, Time Warner, Spectrum, whatever, but it would be interesting if one of them would declare "we won't share your data!"  or something.  
  • Reply 3 of 37
    So take away legal fiction “1st amendment protections” for corporations, if they pull these stunts!  We The People are the masters, not faceless corporate.  

    Governments also should never sell our data without opt-in.
    edited February 2020 netmageleftoverbaconmuthuk_vanalingamdws-2StrangeDaysolsdysamoriacornchip
  • Reply 4 of 37
    So take away legal fiction “1st amendment protections” for corporations, if they pull these stunts!  We The People are the masters, not faceless corporate.  

    Governments also should never sell our data without opt-in.
    That’s a road you don’t want to go down. If they can take it away from corporations, they can take it away from you. We need to look into other ways to stop them from doing it, or only support companies that don’t. 
    SpamSandwichjbdragoncat52
  • Reply 5 of 37
    BeatsBeats Posts: 3,073member
    "This is a practice AT&T is known to have performed for a number of years, under the guise of it allowing them to "discount" bills. "

    AT&T is just fighting to discount our bills guys! Nothing to see here...
    SpamSandwichhammeroftruthmuthuk_vanalingamkurai_kagecornchip
  • Reply 6 of 37
    lkrupplkrupp Posts: 10,557member
    So take away legal fiction “1st amendment protections” for corporations, if they pull these stunts!  We The People are the masters, not faceless corporate.  

    Governments also should never sell our data without opt-in.
    In your dreams. Face reality. Freedom is not free. To replace the revenue from selling our data the ISPs will simply raise their rates to compensate. I don't think I want the government to take over and operate ISPs or any other enterprise. 
    mwhite
  • Reply 7 of 37
    MacProMacPro Posts: 19,727member

    Their defense argument:  'Every ISP believes that its business is in the public interest.  And if an ISP does something which it believes will make money and that that is in the public interest, that cannot be illegal.' /sarcasm...  in case not obvious

    edited February 2020 muthuk_vanalingamdysamoria
  • Reply 8 of 37
    MplsPMplsP Posts: 3,921member
    Using this argument, plagiarism is simply exercising your first amendment. 
    DAalsethmuthuk_vanalingampeterhartjbaughentropyscat52dysamoria
  • Reply 9 of 37
    MplsP said:
    Using this argument, plagiarism is simply exercising your first amendment. 
      That might also cover Copyright and Patent infringements. Makes you think does it not?
    MplsPmuthuk_vanalingamjbaugholsdysamoria
  • Reply 10 of 37
    DAalsethDAalseth Posts: 2,783member
    So take away legal fiction “1st amendment protections” for corporations, if they pull these stunts!  We The People are the masters, not faceless corporate.  

    Governments also should never sell our data without opt-in.
    That’s a road you don’t want to go down. If they can take it away from corporations, they can take it away from you. We need to look into other ways to stop them from doing it, or only support companies that don’t. 
    As Coretta Scott King said many years ago; This country has no future unless it frees itself from two basic falsehoods-that money is speech and that corporations are citizens. 
    Pretending that corporations are citizens, and not the simple organisms that consume money and excrete pollution that they are is to guarantee that citizens rights and freedoms will be eroded and eventually eliminated. 

    I am an absolutist when it comes to free speech. I think that yes you do have a right to shout fire in a theatre, as long as you are willing to face the consequences for your actions. But I see this as an absolute abuse of the concept of free speech. That a corporation can take real people’s information, and sell it to anyone without having to ask permission is a total abuse. 
    leftoverbaconkurai_kagepeterharthucom2000StrangeDaysolsunbeliever2dysamoriacornchipGaby
  • Reply 11 of 37
    This is complete bullshit. By that logic anyone could sell anything about anyone. 

    Here's my data they want to be able to sell without asking me:

    "The law requires internet service providers to inform of the types of user data it collects, as well as other companies that buy the data from the ISPs. It is also mandated that customers must opt in to allowing the ISP to sell the data, which could include location information, browsing data, and health and financial data, to third-party firms."
    muthuk_vanalingamolscat52dysamoria
  • Reply 12 of 37
    carnegiecarnegie Posts: 1,078member
    DAalseth said:
    So take away legal fiction “1st amendment protections” for corporations, if they pull these stunts!  We The People are the masters, not faceless corporate.  

    Governments also should never sell our data without opt-in.
    That’s a road you don’t want to go down. If they can take it away from corporations, they can take it away from you. We need to look into other ways to stop them from doing it, or only support companies that don’t. 
    As Coretta Scott King said many years ago; This country has no future unless it frees itself from two basic falsehoods-that money is speech and that corporations are citizens. 
    Pretending that corporations are citizens, and not the simple organisms that consume money and excrete pollution that they are is to guarantee that citizens rights and freedoms will be eroded and eventually eliminated. 

    I am an absolutist when it comes to free speech. I think that yes you do have a right to shout fire in a theatre, as long as you are willing to face the consequences for your actions. But I see this as an absolute abuse of the concept of free speech. That a corporation can take real people’s information, and sell it to anyone without having to ask permission is a total abuse. 
    Money is, of course, not speech. I don’t see people arguing that it is, other than as a straw man. The Supreme Court certainly hasn’t said that money is speech, To the contrary, the Court has suggested that it isn’t. The government can, for instance, limit monetary contributions to political candidates.

    But the right to speak necessarily includes the right to spend money to facilitate speech. Without that right the right to speak would, speaking practically, be meaningless. Similarly, the right to have a lawyer necessarily includes the right to spend money to do so. The right to exercise your religion necessarily includes the right to spend money to do so. The right to have an abortion necessarily includes the right to spend money to do so. But money is not a lawyer, or the exercise of religion, or an abortion.

    As for corporations being citizens, the point is that people don’t lose their constitutional rights just because they act through or on behalf of corporations. A book publisher doesn’t lose the constitutional right to print bibles just because it’s incorporated. The government doesn’t have free reign to search an apartment building just because it’s owned through a corporation. Fox News doesn’t lose the right to criticize President Trump just because it’s part of a corporation. That is to say, people working for Fox News don’t lose the right to say critical things In front of cameras and the company doesn’t lose the right to pay them to do so.

    All that said, I think some of the First Amendment arguments which the plaintiffs make in this case are a stretch. But they make some other arguments which I think might have legs.
    Glossator
  • Reply 13 of 37
    I use NordVPN... maybe it’s time to have it always on.

    FYI
    Many antivirus programs these days include VPN services.  I’ll have to do some research into who doesn’t log and sell the data though...
  • Reply 14 of 37
    SoliSoli Posts: 10,035member
    carnegie said:
    DAalseth said:
    So take away legal fiction “1st amendment protections” for corporations, if they pull these stunts!  We The People are the masters, not faceless corporate.  

    Governments also should never sell our data without opt-in.
    That’s a road you don’t want to go down. If they can take it away from corporations, they can take it away from you. We need to look into other ways to stop them from doing it, or only support companies that don’t. 
    As Coretta Scott King said many years ago; This country has no future unless it frees itself from two basic falsehoods-that money is speech and that corporations are citizens. 
    Pretending that corporations are citizens, and not the simple organisms that consume money and excrete pollution that they are is to guarantee that citizens rights and freedoms will be eroded and eventually eliminated. 

    I am an absolutist when it comes to free speech. I think that yes you do have a right to shout fire in a theatre, as long as you are willing to face the consequences for your actions. But I see this as an absolute abuse of the concept of free speech. That a corporation can take real people’s information, and sell it to anyone without having to ask permission is a total abuse. 
    Money is, of course, not speech. I don’t see people arguing that it is, other than as a straw man. The Supreme Court certainly hasn’t said that money is speech, To the contrary, the Court has suggested that it isn’t. The government can, for instance, limit monetary contributions to political candidates.
    StrangeDaysdysamoriaGaby
  • Reply 15 of 37
    carnegiecarnegie Posts: 1,078member
    Soli said:
    carnegie said:
    DAalseth said:
    So take away legal fiction “1st amendment protections” for corporations, if they pull these stunts!  We The People are the masters, not faceless corporate.  

    Governments also should never sell our data without opt-in.
    That’s a road you don’t want to go down. If they can take it away from corporations, they can take it away from you. We need to look into other ways to stop them from doing it, or only support companies that don’t. 
    As Coretta Scott King said many years ago; This country has no future unless it frees itself from two basic falsehoods-that money is speech and that corporations are citizens. 
    Pretending that corporations are citizens, and not the simple organisms that consume money and excrete pollution that they are is to guarantee that citizens rights and freedoms will be eroded and eventually eliminated. 

    I am an absolutist when it comes to free speech. I think that yes you do have a right to shout fire in a theatre, as long as you are willing to face the consequences for your actions. But I see this as an absolute abuse of the concept of free speech. That a corporation can take real people’s information, and sell it to anyone without having to ask permission is a total abuse. 
    Money is, of course, not speech. I don’t see people arguing that it is, other than as a straw man. The Supreme Court certainly hasn’t said that money is speech, To the contrary, the Court has suggested that it isn’t. The government can, for instance, limit monetary contributions to political candidates.
    I'm familiar with the Citizens United decision, I've read it multiple times.

    It doesn't say that money is speech. That's a characterization that critics often use to characterize the Supreme Court's position (in Citizens United and other cases) in order to make it easier to criticize that position. Money isn't speech but, as I indicated, the right to spend money to facilitate speech is necessarily a part of the free speech right. If the government could prohibit you from spending money to facilitate your speech, it could effectively prohibit you from speaking.
    cat52
  • Reply 16 of 37
    hexclockhexclock Posts: 1,250member
    This is complete bullshit. By that logic anyone could sell anything about anyone. 

    Here's my data they want to be able to sell without asking me:

    "The law requires internet service providers to inform of the types of user data it collects, as well as other companies that buy the data from the ISPs. It is also mandated that customers must opt in to allowing the ISP to sell the data, which could include location information, browsing data, and health and financial data, to third-party firms."
    It sounds like a 4th amendment violation, but with a corporation instead of the government doing the violating.

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
    cat52dysamoria
  • Reply 17 of 37
    Ok. This news got me off my chair and I got so mad with these practices of Google, FB, your local corner supermarket via its loyalty cards and now the ISPs (?) who “get to see & know” nowadays (almost) everything that’s going on in your household ...! Hello, AI & the Forums, reading for years but only this pushed me to register.
    And here are few ideas, I hope few lawyers would read, including judges that are to rule on this and perhaps an ombudsman or two (for non US territories).

    If ISP should be CONTRACTUALLY entitled to
    sell my information to unknown third-parties and I didn’t mandate them to do so, how come THEY DON’T SHARE BENEFIT FROM SUCH SALE WITH ME??! How come we don’t get a “cut” onto our accounts! Monthly!!??
    Or different approach: you sell my info - OK, I see the point - then provide me a benefit of free/no fees service(!!) Then don’t make us pay for the connection - act like gmail and FB, you harvest and I have a benefit of ZERO costs. As the non-public TV broadcasting channels that finance themselves  via advertising - I watch “for free” (in theory too) so I am “obliged” to sustain ad breaks! 
    How did it happen that when Internet started off as free tool for the public, governments, states worldwide  etc. all these private “gate-keepers” appeared and it’s virtually impossible to get online without paying some private corporation (who builds only the final cables/antennas to/on your house - not the entire backbone)! Naive? Infrastructure costs? Fine, very well the , thus I am paying for it - but then don’t harvest my “property” ... we are NOT TALKING FREEDOM OF SPEECH - we are TALKING PRIVACY AND ON TOP OF IT PROPERTY RIGHTS - if our information is “sellable” then it’s our property and let us sell it ourselves: make yourselves platforms - I select and sell what I want and ISP gets commission! BUT NOT THAT THEY KEEP IT ALL AND WE EVEN DONT KNOW WHERE IT ALL GOES ... for some “fictional” discount on connection  fee??? Oh, Please! 

    Please - let’s have a class action against these ISPs and let’s GET OUR MONEY BACK! It should make them think twice whom they sue!

    Oh, and to the point of our information being in their “REALM” of freedom
    of speech! So my “health situation” being sold to my potential “adversary” - health insurance/pharmaceutical company - who might opt to raise their fees/prices if they learn what my status is, is not unethical? Against bona morales?
    Then I challenge these corporations not to act on protecting their trade secrets and drop any and all confidentiality and ND-agreements and let their employees TRADE FREELY with ALL the information they learn on their jobs with the competitors! How am
    I to respect your trade secret and YOU DO NOT MY PRIVACY? Where is here just even a  “shadow” of a fair play field and balance of ENTITLEMENTS???! 
    ISP employees are you listening? Regulators
    are you listening? Courts & judges? Oh - the opportunity lawyers - lift this from the ground and make it a landmark case! We are all waiting and watching! Please squash that arrogance on our behalf ... THANK YOU!

    cornchip
  • Reply 18 of 37
    sphericspheric Posts: 2,555member
    Yeah, well, "Big Government" and "EU-style over-regulation" are what y'all didn't want, remember? 
    edited February 2020
  • Reply 19 of 37
    lkrupp said:
    So take away legal fiction “1st amendment protections” for corporations, if they pull these stunts!  We The People are the masters, not faceless corporate.  

    Governments also should never sell our data without opt-in.
    In your dreams. Face reality. Freedom is not free. To replace the revenue from selling our data the ISPs will simply raise their rates to compensate. I don't think I want the government to take over and operate ISPs or any other enterprise. 
    What on earth does this have to do with freedom? ISPs shouldn’t be allowed to sell private data. Fine let them charge more if they feel they need to - and let competitors who don’t feel they need to, charge less and win in the marketplace. 

    This crap is exacrlybwhy regulation exists. 
    entropysdysamoria
  • Reply 20 of 37
    entropysentropys Posts: 4,163member
    MplsP said:
    Using this argument, plagiarism is simply exercising your first amendment. 
    Anything really. I could also say that their dirtbag lawyers are arguing theft is a first amendment right, as what they are selling is YOUR data.
    cat52dysamoriacornchip
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