“Save the Internet” protest outside the Federal Communications Commission (FCC) by Free Press, to voice opposition to proposed rules that would limit net neutrality. May 15, 2014. Photo: Diego M. Radzinschi/ALM

A recently signed bill that imposes stricter consumer privacy protections on internet service providers could add Maine to the list of states like California, Vermont and Washington that have pursued legislation that seems likely to bring them into conflict with the federal government.

The legislation, known as “An Act To Protect the Privacy of Online Customer Information,” was sponsored by State Senator Shenna Bellows and unanimously approved in the Maine Senate before being signed into law by Governor Janet Mills last week.

“Internet privacy has become such a critical issue across our country and our state. Mainers need to be able to trust that the private data they send online won't be sold or shared without their knowledge,” Bellows said in a news release.

Maine's new legislation is much more surgical than other, more robust attempts to regulate the internet in California or New York, which have been more brazen about stepping into an area that the federal government may consider to be constitutionally out of bounds.

So why all of the animosity towards Washington? In January 2018, the Federal Communications Commission voted to appeal net neutrality, an Obama-era order which among other things banned internet service providers from practicing blocking, throttling or paid prioritization. There's a chance that the response unfolding at the state level constitutes more of a political echo than a substantive opening for legal challenges.

Sandy Lynskey, of counsel at Mac Murray & Shuster and a former Ohio Consumer Protection Chief, said it's not unusual for a presidential administration to be challenged by other political parties, nor is it uncommon for attorneys general to band together to enact opposing legislation within their own states.  But she does think that the movement has become tighter—and larger.

“The Democratic attorneys general have really banded together over the past two years in challenging a lot of the rulings that are coming from the Trump Administration. They feel that a lot of the individual consumer protection laws have been vacated,” said Lynskey.

The response has been widespread and ranging in size and scope. Upwards of 30 states have floated the possibility of pursing some kind of net neutrality law. Last October, California passed a law containing familiar net neutrality tenants such as the prohibition of blocking or throttling, though that was met with a lawsuit filed by the Department of Justice last October arguing that states have no power to regulate interstate commerce.

California agreed to postpone enacting the legislation until a lawsuit brought against the FCC by 23 Democratic attorneys general—including its own—is resolved. A brief for that case was filed on August 20, 2018, in the U.S. Court of Appeals for the D.C. Circuit and asks for net neutrality rules to be reinstated.

But don't expect a resolution any time soon. “I think these challenges are going to be in the court way past the next election,” Lynskey said.  

When those outcomes do arrive, what they look like in California, New York, Vermont or any other state challenging the FCC will be anyone's guess. The Interstate Commerce Clause gives the federal government the power to regulate all commerce and trade at the national level, and it could be argued that by its very nature the internet flows across state lines.

If the individual governments and attorneys general contained within those lines want to broach regulating the internet, they may be better off thinking smaller than the expansiveness of net neutrality.  The Maine law, which is scheduled to go into effect in July 2020, simply requires that providers receive permission from customers before sharing or selling their data to a third party—and even that might result in a gauntlet or two being dropped.

“We're certainly going to see challenges, and obviously for example, this Maine law is a good target for federal regulators because its so specifically focused on [internet service providers],” said Jarno Vanto, a partner in the privacy and cybersecurity group at Crowell & Moring.

Still, Maine's approach to regulating the internet is relatively modest, at least in comparison to California. Vanto doesn't even think the law would have attracted much attention were it not for the fact that it specifically references internet service providers.

Lynskey ventured that the modest scope of Maine's law was an attempt to avoid receiving the kind of response the Department of Justice gave out west.

“I think that Maine saw what happened in California and narrowed their scope,” Lynskey said.