Maine Broadband Privacy Law Passes Early First Amendment Test

When you send an email or browse the web, your Internet Service Provider (ISP) may track what sites you visit and when, as well as any unencrypted information you read or send. So Maine requires ISPs to get their customers’ opt-in consent before using or disclosing this and other personal information. ISPs would rather harvest and monetize your data without restraint, so they filed a poorly conceived First Amendment lawsuit against this Maine law. EFF filed an amicus brief in support of the privacy law, along with ACLU, ACLU of Maine, and CDT.

This week, a federal judge rejected the ISPs’ initial legal attack, denying their motion for judgment on the pleadings. This is great news for internet users in Maine. For now, the Maine law, and its important privacy protections, will stand, even as the case moves on to its next stage.

The court explained that the Maine law triggers at least some First Amendment review, because “creation and dissemination of information is speech within the meaning of the First Amendment.” We agree.

The court went on: “But not all speech deserves the same level of protection.” Different kinds of speech enjoy the protections of different kinds of tests. As the court explained, “much hinges on which First Amendment standard applies.” The ISPs sought “strict scrutiny,” which is a very hard test for a state to meet. Maine and our amicus brief favored “intermediate scrutiny,” a test which requires the government to prove that its law is narrowly tailored to the state’s substantial interests.

The court applied intermediate scrutiny. It explained that the Maine law regulates “commercial speech,” meaning speech “related solely to the economic interests of the speaker and its audience.” We agree.

The case is called ACA Connects v. Frey. To learn more, you can read the court’s opinion, our amicus brief, and our earlier blog post explaining our amicus brief.