OTI Welcomes Federal Court Decision To Uphold Maine Broadband Privacy Law

A federal district court issued a decision in ACA Connects vs. Frey that upholds Maine’s broadband privacy law. The court rejected the ISPs’ arguments that the law should be struck down because it is preempted by federal law, violates the First Amendment rights of ISPs, and is too vague. The court also rejected the argument that FCC action prevents state legislatures from regulating broadband privacy.

New America’s Open Technology Institute (OTI) advocated for the FCC’s 2016 broadband privacy rules and opposed the 2017 repeal of the rules under the Congressional Review Act. Following the repeal, OTI published model broadband privacy legislation to guide state legislatures like Maine’s and in 2019, OTI urged Maine to pass the bill with the broadband privacy protections that eventually became state law.

In June, OTI and Access Now, represented by Georgetown Law’s Institute for Public Representation, filed an amicus brief in the ACA Connects case. The brief provided a technical explanation of the information that ISPs collect, outlined how ISPs are in a distinctly privileged position to access their customers’ sensitive information, and explained that therefore the broadband privacy law was needed. The brief also argued that customers cannot avoid revealing personal information to ISPs without regulatory intervention.

ACA Connects vs. Frey will now proceed to discovery and potentially a trial.

The following quote can be attributed to Christine Bannan, policy counsel at New America’s Open Technology Institute:

“The court’s decision is a victory for the broadband privacy of Maine residents. It also sets a good precedent for other states that want to pass legislation to restore privacy and open internet protections that the FCC has repealed.”