Earlier this month, Maine’s legislature enacted a new statute granting broad privacy rights to internet users in the state. Hailed as “the strictest consumer privacy protections in the nation,” the statute places among the toughest burdens on regulated entities to protect the data of their consumers.

The statute applies only to broadband internet service providers (ISPs), defined as any “mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints.” According to the sponsor of the original bill, state Senator Shenna Bellows, the statute is intended to target companies with mass amounts of consumer data, such as Verizon and Xfinity. It excludes large technology companies such as Google and Facebook, which are still avoidable by consumers if they choose to do so. Sen. Bellows noted that the prioritization of ISPs was due to the fact that, “you can use the internet without using Facebook, [but y]ou can’t use the internet without using your internet service provider.” She has stated that she does intend to introduce more general privacy legislation in the future.
Continue Reading Maine Enacts Broadband Privacy Law

In a ruling with implications for both net neutrality and privacy, the Ninth Circuit ruled en banc today that the common carrier exemption in Section 5 of the FTC Act is activity-based, reversing a 2016 panel ruling that the exemption was status-based.  Today’s decision bolsters the FTC’s authority to bring consumer protection (including privacy) and competition actions against providers of Internet access service, which the FCC has ruled is not a common carrier service in connection with that agency’s repeal of net neutrality rules.

This appeal arises from the FTC’s lawsuit against AT&T alleging that AT&T’s practice of throttling the speed of customers with unlimited data plans once they reached a certain data usage threshold violated Section 5 of the FTC Act.  AT&T had challenged the FTC’s authority to bring the case, arguing that the company was immune from FTC oversight because it also offers common carrier (e.g., voice telephone) service.  Although the district court sided with the FTC on this question, a 2016 Ninth Circuit panel went the other way and, in doing so, created what the FTC and FCC agreed was a potential ‘gap’ in authority in which neither agency would have the right to police many actions by telecommunications companies. 
Continue Reading Ninth Circuit Decision Provides Critical Win to FTC in its Authority over Internet Service Providers

Last Friday, the Federal Communications Commission (“FCC”) rejected a petition from consumer advocates asking the FCC to extend its Open Internet Order by requiring edge providers such as Facebook and Amazon to follow the privacy regulations of Section 222 and to require those edge providers to honor “Do Not Track” requests from consumers.  The FCC

The FCC has announced its agenda and panelists for its public workshop on protecting the privacy of consumers who use broadband Internet access services, which will be held on April 28.

FCC Chairman Tom Wheeler will give opening remarks and Matt Blaze, Associate Professor of Computer and Information Science at the University of Pennsylvania, will

Last week AT&T filed a Reply in support of its Motion to Dismiss challenging the Federal Trade Commission’s (FTC’s) attempt to exercise jurisdiction over the company pursuant to Section 5 of the FTC Act.

As we previously reported, the FTC filed a complaint against AT&T alleging that the company misled consumers by reducing the data speeds for its unlimited mobile data plan customers (i.e., the alleged “throttling program”).  AT&T filed a Motion to Dismiss the complaint in January, arguing that the FTC lacked jurisdiction over the company because its “status” as a common carrier places it squarely within the common carrier exemption to Section 5 of the FTC Act.  The FTC responded that the common carrier exception is a narrow, “activity-based” exception that excludes an entity “only to the degree it is engaged in common carrier activities and not because of its general ‘status’ as a common carrier.”
Continue Reading AT&T: FTC Lacks Jurisdiction Even Under “Activity-Based” Interpretation of the Common Carrier Exemption

Last week the Federal Trade Commission (FTC) opposed a Motion to Dismiss filed by AT&T that challenged the FTC’s attempt to exercise jurisdiction over the company in connection with certain of its mobile broadband service activities.

As we previously reported, the FTC filed a complaint against AT&T in late 2014 alleging that AT&T engaged in unfair and deceptive conduct in violation of Section 5 of the FTC Act when it “throttled” mobile broadband subscribers who were “grandfathered” into the company’s unlimited mobile data plan.  AT&T filed a Motion to Dismiss the complaint in January, arguing that its overall status as a common carrier subject to the Communications Act exempts it from Section 5 of the FTC Act.  The FTC, in turn, last week responded to AT&T by arguing that AT&T’s “status-based” position did not exclude it from the FTC’s jurisdiction on the theory that “the common carrier exemption applies only to the extent AT&T engages in common carrier services.”


Continue Reading FTC Says Common Carrier Exemption to Section 5 Jurisdiction is Activity-Based, Not Status-Based