ISPs cite First Amendment as reason why they can sell customer data
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.
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.
Comments
AT&T is just fighting to discount our bills guys! Nothing to see here...
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
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."
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.
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...
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.
“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”
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!!??
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???!
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!
This crap is exacrlybwhy regulation exists.