Internet providers, Silicon Valley companies, advertisers and even the FTC have all provided feedback to the Federal Communications Commission about why its proposed privacy rules are problematic. It would do little more than impose needless restrictions on broadband providers without actually increasing online users’ privacy.
Harvard Law School professor Laurence Tribe recently provided another reason: the rules are likely to be overturned as unconstitutional.
During a recent speech at a Media Institute luncheon, the noted Supreme Court litigator laid out in detail why the FCC’s proposed broadband privacy rules violate the First Amendment and how federal courts have overturned similar rules.
The proposed rules are “at least as clearly unconstitutional” as a previous scheme by the FCC to prevent phone companies from using non-sensitive information for marketing purposes, Tribe said.
Tribe is representing broadband providers opposed to the FCC’s proposed rules, which would set different, more stringent privacy standards for internet providers than for other online companies, such as Facebook, Google and Amazon. In May, he laid out his arguments in greater detail in a 40-page filing.
He identified five previous court cases that help show why the FCC’s opt-in proposal is likely to be rejected by a federal appeals court:
US West v. FCC
In 1999, Tribe helped successfully argue a case in the U.S. Tenth Circuit Court of Appeals involving the FCC’s efforts to require telecom providers to get customers to opt-in before their calling or other non-sensitive information could be used for marketing purposes. Carriers argued those opt-in restrictions constituted a violation of the First Amendment because it restricted their ability to communicate with customers. The appeals court agreed, saying, “the agency has failed to satisfy its burden of showing that the customer approval regulations restrict no more speech than necessary.” The government didn’t seek Supreme Court review of the case.
The FCC’s new proposal is “just a re-incarnation on steroids of the regulations that the Tenth Circuit held invalid,” Tribe said. “The only reason that this discussion is ongoing and the only reason the FCC apparently thinks it can get away with this, is that the Supreme Court has not yet fully spoken on this particular topic.”
Martin v. Struthers
In the 1943 case of Martin v. Struthers, the Supreme Court rejected an Ohio town’s ordinance that was aimed at curtailing door-to-door distribution of handbills by religious groups and others. The city made it a misdemeanor for a solicitor to knock on a homeowner’s door unless he had received express permission beforehand. The Supreme Court rejected the ordinance as unconstitutional, saying the First Amendment protects “the right to distribute literature” and “the right to receive it.”
“There, the court invalidated a city ordinance that effectively operated as an opt-in consent requirement,” Tribe explained. “The court held that this ordinance impermissibly burdened speech because it effectively required an affirmative invitation or opt-in by the homeowner.”
Lamont v. Postmaster General
In this case, the Supreme Court struck down a 1962 law that required the Postmaster General to withhold unsealed mail from government-determined “communist political propaganda” unless the addressee requested it. The addressee had to tell the Post Office whether he wanted to receive the mail. The court unanimously ruled the statute unconstitutional because it placed an undue burden on citizens to request the mail and “imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment.”
The law, Tribe said, included an “impermissible opt-in requirement.” The court later ruled that Americans can ask the Post Office to stop delivering mail (political, marketing materials, etc.) from parties that repeatedly send them unwanted materials. And they could enlist the government’s help in stopping a flood of junk mail, Tribe explained. The rulings illustrate that “the government can enforce an opt-out rule even where it cannot enforce an opt-in rule,” he said.
Denver Area Educational Telecom Group Consortium Inc. v FCC
After Congress passed the 1992 Cable Act, the FCC was required to implement rules designed to prevent children from seeing indecent material on public access channels. The agency enacted rules that required cable operators to segregate offensive content on separate channels and block transmission of indecent content to all cable subscribers except for those who had opted-in via writing to receive it.
In 1996, the Supreme Court ruled that provision of the law unconstitutional and violated the First Amendment because it required cable providers to “segregate and to block” programming and wasn’t “appropriately tailored to achieve the basic, legitimate objective of protecting children from exposure to “patently offensive” material.”
In this case “the court struck down what’s called a ’segregate-and-block‘ system for receiving supposedly indecent cable shows on the ground that such an opt-in system for potentially offensive or ’adults only‘ communication impermissibly suppressed speech that some parents, but not others, would want their children not to receive,” Tribe explained.
Sorrell v IMS Health Inc.
Finally, in 2011, the Supreme Court rejected provisions of a 2007 Vermont law aimed at preventing drug companies from using a doctor’s history of prescribing medications for marketing purposes unless the physicians opted-in to having their information collected. State lawmakers argued the restrictions help safeguard privacy and lessened the chances that doctors would be encouraged to prescribe drugs that weren’t in the best interests of patients.
IMS Health Inc., a data company, gathered information from pharmacies about the prescriptions doctors were writing. (The data didn’t include patient details.) The information was then sold to drug makers to help them better target messages to physicians and other marketing efforts.
The Supreme Court held that “speech in aid of pharmaceutical marketing ... is a form of expression protected by the Free Speech Clause of the First Amendment.”
“Rather than merely letting doctors opt out of having their identities and prescribing habits shared this way with the pharmaceutical companies, the state scheme presumed that all doctors would rather keep such information to themselves unless they actively opted to having it shared,” Tribe said.
“Deterring that activity by using an opt-in requirement and thereby reducing the efficiency of provider outreach is obviously closely parallel to what the FCC is doing here – employing an opt-in requirement to restrict uses of customer data to help broadband providers identify those customers most in need of and likely to want particular services,” he said.