Earlier this month, United States District Judge Lance Walker ruled in favor of Maine’s landmark internet privacy law. The law, LD 946, “An Act To Protect the Privacy of Online Customer Information,” was sponsored by state Sen. Shenna Bellows of Manchester and took effect July 1. Bellows grew up in Hancock. Rep. Nicole Grohoski (D-Ellsworth) was one of the bill’s co–sponsors.
LD 946 prevents broadband internet service providers operating in Maine from selling or sharing customers’ personal data without permission. According to the Portland Press Herald, the law made Maine the first state to require internet service providers to ask permission before mining residents’ data. The law was designed not to run afoul of the U.S. Constitution’s interstate commerce clause, to the point that some digital privacy advocates argued that it didn’t go far enough to protect Mainers. The recent ruling indicates the law’s authors were successful in drafting language that could hold up in court — at least for now.
Several trade organizations representing the telecom industry sued, alleging that the statute violates the First and Fourteenth amendments, is “unconstitutionally void for vagueness” and is pre–empted by federal law. Walker’s ruling rejected many of the trade groups’ claims, including that the state’s right to regulate internet companies is pre–empted by federal law. The court also rejected the argument that Maine’s privacy law is subject to the strictest scrutiny under First Amendment free speech protections. Walker wrote that the marketing of consumer data is protected, but that it is commercial speech and “not all speech deserves the same level of protection.”
The suit is proceeding on the First Amendment claim and the contention that the law is too vague. Maine Attorney General Aaron M. Frey said that while there will be more litigation, the initial ruling is a “huge victory for Maine consumers.”
Maine’s law is a step in the right direction, but the scope is limited. It does not apply to tech titans such as Google and Facebook, which collect vast amounts of data but are based outside Maine. But the law does help Mainers get what they paid for in terms of internet service without giving away personal information they never intended to be part of the bargain. The pandemic has proven just how essential home internet service can be for education, business, entertainment and social connection. Companies should provide that service without exploiting their customers for further profit.
Other states, and Congress, should take note of the initial ruling on the challenge to Maine’s law. A piecemeal, state-by-state approach to digital privacy protections will create a challenging regulatory landscape for internet service providers and consumers. The internet is global after all, and solutions will have to be too.