Maine Lawmakers Send One Of The Country's Toughest Internet Privacy Proposals To The Governor’s Desk

May 3, 2019

Maine could soon have the toughest internet privacy law in the country.

This week the Legislature sent a bill to Democratic Gov. Janet Mills that would prohibit internet service providers such as Spectrum, Verizon and AT&T from selling their customers' data without consent. The fight over the bill has been intense — and expensive. One provider even attempted to enlist its employees to urge lawmakers not to pass it.

The Maine Legislature has sent to the governor's desk one of the strictest online privacy proposals in the country.
Credit Manu Fernandez / AP File

The bill stands out from other state privacy bills because internet service providers, known as ISPs, would have to ask their customers permission to use and sell their private data. Other state laws require customers to opt-out.

"I think that when you send an email or conduct an online search that should be private,” says Democratic state Sen. Shenna Bellows, of Manchester. “It's your information, not your internet service provider's information.”

Bellows is the bill's lead sponsor and the former director of the ACLU of Maine, which also supports the proposal. Bellows says ISPs such as Spectrum and AT&T can view all unencrypted data their customers use or consume on the internet. And she says that data are valuable to the ISPs and the array of companies that would buy it.

"Everything you do on the internet goes through your internet service provider. They should not be profiting off your personal information," Bellows says.

ISPs would have been barred from selling customers personal data under a 2016 rule drafted by the Federal Communications Commission, but President Trump nullified those restrictions by executive order two years ago, triggering a wave of internet privacy legislation in state legislatures, including Maine's.

This week the Legislature sent a bill to Democratic Gov. Janet Mills that would prohibit internet service providers such as Spectrum, Verizon and AT&T from selling their customers' data without consent.
Credit John Raoux / AP File

"When the federal government stands down, the state government should stand up," says Gigi Sohn, a fellow at the Georgetown Law Institute for Technology Law and Policy, a former attorney for the Obama FCC that drafted the 2016 rule.

Sohn told the Legislature's Energy and Utilities Committee this spring that the Maine bill closely mirrors the rules struck down by Trump, and that she has little sympathy for the big ISPs who lined up to oppose the Maine bill, arguing that it would create a patchwork of state regulations. She says the same ISPs, some multinational corporations, spent millions to defeat the federal regulation.

"It's like pushing Humpty-Dumpty off the wall, and then complaining that he shatters into 50 pieces," Sohn said.

The pushback from ISPs such as Charter Communications, which owns Spectrum in Maine, has been fierce.

Nancy Libin, a lobbyist for the Internet and Television Association, the lead trade group representing U.S. broadband and pay television companies, told lawmakers that the law is unnecessary because most of the ISPs already safeguard customers' personal data and are regulated by the Federal Trade Commission, or FTC.

And Libin and other opponents said the bill will give consumers a false sense of privacy because it only applies to ISPs and not companies like Facebook and Google, an argument repeated in a barrage of digital ads on different platforms — including Facebook.

That ad was part of $16,000 digital campaign by the Maine State Chamber of Commerce, which also opposed the bill. In a statement, Ben Gilman with the Chamber of Commerce, said the bill gives a false sense of security by excluding the “biggest online players” and contribute to a patchwork of regulations.

Sen. Shenna Bellows, the bill's sponsor, agrees that Facebook and Google should not profit from user data, but she left those services out of the bill for a number of reasons.

"Your ISP is not optional. You cannot engage in any internet activities online without going through an ISP," she says.

And she says ISPs are the paid gateway sites like Facebook and Google, who extract a different price from their users.

"Google and Facebook are free services that you pay for with your privacy," she says.

Bellows says there is a legal distinction, too. She says Maine can regulate ISPs that operate here, yet it is not clear if the constitution's interstate commerce clause allows the state to legally regulate services such as Facebook and Google.

Bellows says that is likely why opponents wanted those services included in the bill.

"Inclusion of Facebook and Google was a tactic by the ISPs who are opposed to this bill to try and open up this bill to a constitutional legal challenge," she says.

In a statement, a spokesperson for Charter Communications reiterated its concerns that search engines and social media websites are excluded, saying it doesn't go far enough to protect its customers and "700-plus employees in Maine."

Reports from the Maine Ethics Commission show that Charter, other ISPs and trade groups spent tens of thousands of dollars trying to convince lawmakers to defeat the privacy proposal, making it one of the most heavily lobbied bills of the legislative session.

But those reports do not capture all of the attempts to influence lawmakers. At one point legislators received canned emails from Charter employees through a third-party service used by companies and interest groups to lobby state lawmakers and Congress.

Efforts to reach the employees were not successful because the lobbying service would not accept incoming messages, but Bellows says one Charter employee messaged her privately to say he supported the bill.

"It's a huge amount of pressure. And this employee was worried that he would be penalized or potentially lose his job if his support for my bill became public. And that's really concerning," Bellows said.

The Charter spokesperson said in a statement that employees emailed lawmakers if they shared the company's concerns with the bill. The spokesperson did not say whether the company asked employees to contact lawmakers or pressured them to do so.

Either way, the effort was not persuasive. The House overwhelming approved the bill and the Senate enacted it unanimously.

Bellows is hopeful that Governor Mills will sign it.

Originally published May 31, 2019 at 3:55 p.m. ET.