Maine judge rejects broadband industry’s preemption and First Amendment challenges to broadband privacy law

The broadband industry has lost a key initial ruling in its bid to kill a privacy law imposed by the state of Maine. The top lobby groups representing cable companies, mobile carriers, and telecoms —ACA, CTIA, NCTA, and USTelecom — sued Maine in Feb, claiming the privacy law violates their First Amendment protections on free speech and that the state law is preempted by deregulatory actions taken by Congress and the Federal Communications Commission. Maine's Web-browsing privacy law is similar to the one killed by Congress and President Donald Trump in 2017, as it prohibits ISPs from using, disclosing, or selling browsing history and other personal information without customers' opt-in consent. The law took effect on July 1, 2020.

The case is not over, but the July 7 ruling by Judge Lance Walker in US District Court for the District of Maine dealt a major blow to the broadband industry's lawsuit. Judge Walker denied the plaintiffs' motion for judgment on the pleadings, criticized the industry's First Amendment argument, and granted Maine's motion to dismiss claims that the state law is preempted by federal law. The judge agreed with the broadband industry that "plaintiffs' marketing of customer data... is sheltered by the First Amendment," but he added that "not all speech deserves the same level of protection."

"While Judge Walker allowed the broadband industry's argument that the Maine law violates the First Amendment to proceed, he ruled that the law is not unconstitutional on its face and clearly expressed skepticism that the industry would succeed at trial," said Benton senior fellow and public advocate Gigi Sohn. "Judge Walker refused to apply a strict scrutiny standard to the law, instead applying an intermediate First Amendment scrutiny that applies to commercial speech. He also firmly rejected broadband providers' overwrought allegations of harm."