Constitutional Scholar: FCC Broadband Privacy Proposal Violates First Amendment

Internet service providers wired and wireless have submitted a paper to the Federal Communications Commission by constitutional scholar Laurence Tribe that says the commission's broadband privacy proposal threatens speech rights. The National Cable & Telecommunications Association, CTIA and USTelecom commissioned the paper. "The FCC’s proposed rules would violate the First Amendment," Tribe concluded. "At minimum, they raise a host of grave constitutional questions and should not be adopted."

The FCC is proposing to require ISPs to get affirmative (opt in) permission from subs to share information with third parties in most instances, a requirement not placed on edge providers like Google and Facebook for their own data collection and monetizing. Tribe is a voice of experience on the CPNI (customer proprietary network information) issue, the groups point out, having successfully challenged the voice CPNI order in US West Communications, Inc. v. FCC. He says the FCC proposal clearly triggers First Amendment scrutiny and clearly does not fare well in that examination. "The proposal runs afoul of fundamental First Amendment limits on the FCC’s authority to regulate customer information," he said. Tribe says the proposal restricts "a great deal of speech" and draws "impermissible content-based distinctions" based on what marketers say.