Maine passes bill prohibiting ISPs from selling customer data without consent

onetheycallEric

TS Addict
Staff member

Internet service providers have a tendency to slurp user data, and since federal protections were reversed in 2017, ISPs are largely free to monetize customer browsing data without so much as consent or even an opt-out. The state of Maine aims to change that with the passage of a new bill.

The state's Senate voted unanimously to pass the bill, after the bill found similar favor in the state House. The bill, LD 946, requires ISPs to obtain consent before collecting, disclosing, selling or permitting access to customer information. LD 946 outlines exceptions where ISPs can use customer information without consent, such as honoring a court order or in case of emergency services.

According to the text of the bill, personal information includes browsing history, application usage, and geolocation data -- the latter of which is at the center of a class-action lawsuit against major wireless carriers. The legislation also outlines an exhaustive list of information considered personally identifying that a service provider wouldn't be allowed to touch without consent.

The bill reads that ISPs cannot refuse service to or otherwise penalize a customer for withholding consent. Additionally, ISPs will not be permitted to provide customers with discounts for their consent. The bill's language echoes a similar theme to that of the one passed in California last year, in that states are fed up with the sweeping disregard and fleeting lip service from ISPs regarding consumer privacy.

The bill is currently awaiting a signature from Governor Janet Mills before being enacted into law.

Permalink to story.

 

wiyosaya

TS Evangelist
Its a start, and perhaps a big one at that. Next steps, IMO, should be gagme and fakebook then followed closely by m$ and crApple.
 

GeforcerFX

TS Evangelist
So the agreement you sign with your isp for service will just have a consent clause. Congrats solves nothing but makes the gov look good I guess.
 

Uncle Al

TS Evangelist
"The bill reads that ISPs cannot refuse service to or otherwise penalize a customer for withholding consent. Additionally, ISPs will not be permitted to provide customers with discounts for their consent. The bill's language echoes a similar theme to that of the one passed in California last year, in that states are fed up with the sweeping disregard and fleeting lip service from ISPs regarding consumer privacy."
As the bill states, the ISP's cannot refuse you service if you choose not to give them consent and I'm willing to bet that if any of them try to trick you they are going to be facing some hefty fines as well as civil actions. It's a great start but you can bet that the ISP's will use this as their springboard to significantly raise your rates unless that is addressed quickly .....
 

onetheycallEric

TS Addict
Staff member
"The bill reads that ISPs cannot refuse service to or otherwise penalize a customer for withholding consent. Additionally, ISPs will not be permitted to provide customers with discounts for their consent. The bill's language echoes a similar theme to that of the one passed in California last year, in that states are fed up with the sweeping disregard and fleeting lip service from ISPs regarding consumer privacy."
As the bill states, the ISP's cannot refuse you service if you choose not to give them consent and I'm willing to bet that if any of them try to trick you they are going to be facing some hefty fines as well as civil actions. It's a great start but you can bet that the ISP's will use this as their springboard to significantly raise your rates unless that is addressed quickly .....
I'm interested to see what/how ISPs will exploit any perceived loophole. Or if they'll have their lobbyists march to Maine to squash it. We'll see.
 

gamerk2

TS Maniac
"The bill reads that ISPs cannot refuse service to or otherwise penalize a customer for withholding consent. Additionally, ISPs will not be permitted to provide customers with discounts for their consent. The bill's language echoes a similar theme to that of the one passed in California last year, in that states are fed up with the sweeping disregard and fleeting lip service from ISPs regarding consumer privacy."
As the bill states, the ISP's cannot refuse you service if you choose not to give them consent and I'm willing to bet that if any of them try to trick you they are going to be facing some hefty fines as well as civil actions. It's a great start but you can bet that the ISP's will use this as their springboard to significantly raise your rates unless that is addressed quickly .....
I'm interested to see what/how ISPs will exploit any perceived loophole. Or if they'll have their lobbyists march to Maine to squash it. We'll see.
They'll just add a "By using this service, you consent to the sale of your user data" clause to their TOS. This really doesn't solve anything; it's a bill that exists so politicians can say "We passed a bill".
 

gamerk2

TS Maniac
Did you actually read the article and the wording of the bill? Try again..
The Supreme Court has already ruled that adding such clauses to a TOS counts as consent as far as the law is concerned. All that is going to change is a consent clause will get added to every websites TOS, therefore complying with the letter of the law without actually changing anything.
 

gamerk2

TS Maniac
Unless a state law prohibits it, thus this new state law, and Califonia's new laws. The Supreme court is not the end-all-be-all of the law. It carries heavy weight, but States are allowed to disregard the Supreme Court if the need arises.
No they are not; any rulings by the Supreme Court trump any state level law to the contrary of the courts rulings. Laws can be tailored in such a way as to work around the margins of the courts rulings, but can not contradict any ruling made by the court.

Based on prior rulings, companies can meet Maine's consent requirement by adding it into their TOS. Thus, the consumers give their consent to have their personal data collected and sold as a requirement for using the site.

And any company that does so will be open to citizen legal action they can not defend.
See above; such lawsuits would have no legs to stand on.
 

gamerk2

TS Maniac
It's clear you have a lack of understanding of how court rulings work in practice. Nullification has been a dead argument from the beginning of this country and has never been upheld by a single Federal court.

https://en.wikipedia.org/wiki/Nullification_(U.S._Constitution)

Thus, the federal courts have held that under the Constitution, federal law is controlling over state law, and the final power to determine whether federal laws are unconstitutional has been delegated to the federal courts. The courts therefore have held that the states do not have the power to nullify federal law.
And here's a long list of relevant cases on the topic:

https://en.wikipedia.org/wiki/Martin_v._Hunter's_Lessee
https://en.wikipedia.org/wiki/Cohens_v._Virginia
https://en.wikipedia.org/wiki/Osborn_v._Bank_of_the_United_States
https://en.wikipedia.org/wiki/Worcester_v._Georgia
https://en.wikipedia.org/wiki/Ableman_v._Booth
https://en.wikipedia.org/wiki/Cooper_v._Aaron

The last *explicitly* rejected Nullification.

So, what's the legal basis of your argument? Because mine is backed by 250+ years of prior legal history.
 

gamerk2

TS Maniac
That applies only to matters that effect the entire nation. States still and always will have the option to create laws which supersede effect of federal law within that state. You need to learn the meaning of context.
Again, false. You are talking EXACTLY about Nullification, and I've already posted pretty much the entire legal history of that topic. So either post a rebuttal that is legally sound, or stop talking about things that you clearly don't know about.
 

gamerk2

TS Maniac
Again, context matters and you are failing to understand it.
Uhhh...no. In this case, the law is perfectly clear.

Courts at the state and federal level, including the U.S. Supreme Court, repeatedly have rejected the theory of nullification. The courts have decided that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws.
In the 1950s, southern states attempted to use nullification and interposition to prevent integration of their schools. These attempts failed when the Supreme Court again rejected nullification in Cooper v. Aaron, explicitly holding that the states may not nullify federal law.
Per United States v. Peters:

The Supreme Court held that the Pennsylvania legislature did not have the power to nullify the federal court's judgment, stating: "If the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."
Per Martin v. Hunter's Lessee:

The Supreme Court held that Article III of the Constitution gives the federal courts jurisdiction in all cases arising under the Constitution or federal law, and gives the Supreme Court final authority in such cases. The Supreme Court stated that the people, by providing in the Constitution that the Supreme Court has final authority in such cases, had chosen to limit the sovereignty of the states. The Supreme Court therefore found that the federal courts, not the states, have the final power to interpret the Constitution.
Per Cohens v. Virginia:

The Supreme Court held that under Article III of the Constitution, the federal courts have jurisdiction over all cases involving the Constitution or federal law, including state cases in which a federal defense arises. Because the defendants in the case claimed that their actions were authorized by a federal statute, there was a disputed issue of federal law and the Supreme Court had authority to review the state court's judgment. Thus, the Supreme Court again found that the final power to interpret federal law lies in the federal courts, not the states.
Per Osborn v. Bank of the United States:

The Supreme Court stated: "[T]he act of the State of Ohio ... is repugnant to a law of the United States, made in pursuance of the Constitution, and therefore void." The Supreme Court thus rejected Ohio's attempt to nullify federal law.
Per Worcester v. Georgia:

The Supreme Court rejected Georgia's attempt to nullify the federal treaties with the Cherokees. The Court held that "according to the settled principles of our Constitution", authority over Indian affairs is "committed exclusively to the government of the Union". The Court held that under the federal treaties with the Cherokees, "the laws of Georgia can have no force" on Cherokee land. The Court held that Georgia's laws regulating Cherokee land were "void, as being repugnant to the constitution, treaties, and laws of the United States". The Supreme Court thus asserted final authority to interpret the Constitution and federal treaties, rejecting Georgia's nullification attempt.
Per Ableman v. Booth:

Ableman v. Booth was the Supreme Court's most thorough examination yet of the theory of nullification. Like the decisions that preceded it, Ableman found that federal law was superior to state law, and that under the Constitution, the final power to determine the constitutionality of federal laws lies in the federal courts, not the states. Ableman found that the Constitution gave the Supreme Court final authority to determine the extent and limits of federal power and that the states therefore do not have the power to nullify federal law.
Per Cooper v. Aaron:

The Supreme Court explicitly rejected nullification in the case of Cooper v. Aaron, 358 U.S. 1 (1958). The state of Arkansas had passed several laws in an effort to prevent the integration of its schools. The Supreme Court, in its only opinion to be signed by all nine justices[citation needed], held that state governments had no power to nullify the Brown decision. The Supreme Court held that the Browndecision and its implementation "can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted 'ingeniously or ingenuously'." Thus, Cooper v. Aaron directly held that states may not nullify federal law.
So, would you care to quote one, just one case in all of US history that supports your view? Because guess what? I'm not dropping this. So either post something that legally supports your view, or stop posting. You are NOT getting the last word on this.
 

gamerk2

TS Maniac
How about the states who are passing these laws? Yes?

I don't need to? The States are doing that for me by, again, passing the laws they are passing. They are fully within States rights under the constitution. The failure to understand context here is not with me or the States. Carry on though...
Call me when the courts uphold said laws.
 

gamerk2

TS Maniac
Ok, done. See below. Pay careful attention to the notes listed state by state. As of today, most of those bills passed into law. The courts don't need to uphold these laws. They are in full effect and enforceable until a court over-rides or public vote rescinds them.

http://www.ncsl.org/research/telecommunications-and-information-technology/net-neutrality-legislation-in-states.aspx

You were saying?
None of those laws goes against any Federal law, regulation, or court decision that I can see. Let's look at each specific case:

California enacted the California Internet Consumer Protection and Net Neutrality Act of 2018. This act prohibits fixed and mobile internet service providers, as defined, that provide broadband internet access service, as defined, from engaging in specified actions concerning the treatment of internet traffic. In a deal with the U.S. Department of Justice, California agreed to not enforce its net neutrality law until the lawsuit challenging the Federal Communications Commission's repeal of the federal regulations is resolved. In addition, California adopted a resolution urging the FCC to reinstate the 2015 Open Internet Order and urging the U.S. Congress to intervene to protect net neutrality and codify its principles in statute.
California's is non-enforceable and depending on current lawsuits that will determine if the FCC has the authority to regulate (or in this case, not-regulate) ISPs.

New Jersey adopted a resolution urging the President and Congress of United States to restore “net neutrality” in federal law.
Ah yes, a "Congress, do something" resolution. Otherwise known as "A strongly worded letter".

Oregon prohibited public bodies from contracting with broadband Internet access service providers that engage in certain network management activities based on paid prioritization, content blocking or other discrimination.
This is perfectly legal. While States can not contradict Federal regulations, there is nothing in this law that goes against a Federal regulation that is currently in effect. Remember, the FCC removed Net Neutrality regulations at the Federal level, but did not ban them outright. States are well within their rights to force their own public agencies to only contract ISPs that follow NN principles, so long as the scope of said agencies are limited in state.

Vermont required an internet service provider to certify that it is in compliance with consumer protection and net neutrality standards in order to be eligible to receive a government contract for internet service beginning April 15, 2019 or the date on which the governor’s Executive Order No. 2-18 (internet neutrality in state procurement) is revoked and rescinded, whichever is earlier. The act also required the attorney general to review the network management practices of ISPs in Vermont and determine whether they are in compliance with the 2015 FCC net neutrality rules and to disclose those findings on a publicly available website.
Same legal reasoning as the above.

Washington required a person providing broadband internet access service in the state to publicly disclose accurate information regarding the network management practices, performance characteristics, and commercial terms of its services sufficient for consumers to make informed choices regarding the purchase and use of the services and entrepreneurs and other small businesses to develop, market, and maintain internet offerings. Further, the law prohibits a person engaged in the provision of broadband internet access service in the state from: (1) Blocking lawful content, applications, services, or nonharmful devices; (2) Impairing or degrading lawful internet traffic on the basis of internet content, application, or service, or use of a nonharmful device; or (3) Engaging in paid prioritization.
The first half of this is just disclosure, which is perfectly legal. The second half is legally dubious and largely depends on the outcome of the FCCs Net Neutrality lawsuit. I don't see how this would stand up in court if the FCCs provision prevails.
 

gamerk2

TS Maniac
Yes, they do have the right and authority to regulate ISP's. Just because the current director of the FCC disagrees doesn't make him correct. ISP's provide a utility service that needs regulation, strict regulation.
While I agree on this, ultimately the courts will decide the matter.

And if the Federal government is not going to provide from such regulation, the states are perfectly within their right's and authority to do it on their own. And they are, regardless of the corporate sponsored back-biting.
On the provision the laws do not conflict with any federal law or regulation, yes.
 

gamerk2

TS Maniac
Incorrect. This situation is no different than the MJ laws. Those laws legalized something that the Federal government has deemed illegal. Inside those states, MJ is lawful to own and use. Cross state boarders and the matter changes. However, those state laws are still legal. There is no difference here. The States in question are not satisfied with the action/inaction of the Federal government and are actively effecting what the FCC failed at. The States can and have passed laws which supersede and go right around Federal laws in the name of public interest/rights. The Federal governments case against California will most likely fail and those laws will go into full effect.
Wrong. What the States in question has done is de-criminalize cannabis, or more simply, refusing to enforce existing Federal law. And they are within their rights to do so per the 10th Amendment; the Federal government can not force a state to use it's own resources to enforce Federal law. This is a point that has recently been re-iterated by the courts during the political debate on immigration, when the current administration attempted to force the states to use their own resources to patrol the border (which is itself a Federal, not State function).

In any of the States/Localities where cannabis has been decriminalized by State/Local ordinance the Federal government can still legally arrest people for using/selling cannabis, even if it is "legal" as far as the state/locality is concerned, as per the Supremacy Clause in the Constitution the use and sale of cannabis is still illegal per Federal law and that trumps any law passed by a State/locality.

Seriously, this is Constitutional Study 101 here.