ISPs Sue Maine, Claim Web-Privacy Law Violates Their Free-Speech Rights (arstechnica.com) 126
An anonymous reader quotes a report from Ars Technica: The broadband industry is suing Maine to stop a Web-browsing privacy law similar to the one killed by Congress and President Donald Trump in 2017. Industry groups claim the state law violates First Amendment protections on free speech and the Supremacy Clause of the US Constitution. The Maine law was signed by Democratic Gov. Janet Mills in June 2019 and is scheduled to take effect on July 1, 2020. It requires ISPs to get customers' opt-in consent before using or sharing sensitive data. As Mills' announcement in June said, the state law "prohibits a provider of broadband Internet access service from using, disclosing, selling, or permitting access to customer personal information unless the customer expressly consents to that use, disclosure, sale or access. The legislation also prohibits a provider from refusing to serve a customer, charging a customer a penalty or offering a customer a discount if the customer does or does not consent to the use, disclosure, sale or access of their personal information."
Customer data protected by this law includes Web-browsing history, application-usage history, precise geolocation data, the content of customers' communications, IP addresses, device identifiers, financial and health information, and personal details used for billing. Home Internet providers and wireless carriers don't want to seek customer permission before using Web-browsing histories and similar data for advertising or other purposes. On Friday, the four major lobby groups representing the cable, telco, and wireless industries sued the state in US District Court for the District of Maine, seeking an injunction that would prevent enforcement of the law. In the lawsuit, the groups said the state law "imposes unprecedented and unduly burdensome restrictions on ISPs', and only ISPs', protected speech," while imposing no requirements on other companies that deliver services over the internet. The plaintiffs are America's Communications Association, CTIA, NCTA, and USTelecom.
The law allegedly violates the First Amendment because it "limits ISPs from advertising or marketing non-communications-related services to their customers; and prohibits ISPs from offering price discounts, rewards in loyalty programs, or other cost-saving benefits in exchange for a customer's consent to use their personal information," the lawsuit claims. As for how the Maine law violates the Supremacy Clause, the lawsuit says it's "because it allows consumers to dictate (by opting out or declining to opt in) when ISPs can use or disclose information that they must rely on to comply with federal law, rendering 'compliance with both' state and the foregoing federal laws 'impossible.'"
Customer data protected by this law includes Web-browsing history, application-usage history, precise geolocation data, the content of customers' communications, IP addresses, device identifiers, financial and health information, and personal details used for billing. Home Internet providers and wireless carriers don't want to seek customer permission before using Web-browsing histories and similar data for advertising or other purposes. On Friday, the four major lobby groups representing the cable, telco, and wireless industries sued the state in US District Court for the District of Maine, seeking an injunction that would prevent enforcement of the law. In the lawsuit, the groups said the state law "imposes unprecedented and unduly burdensome restrictions on ISPs', and only ISPs', protected speech," while imposing no requirements on other companies that deliver services over the internet. The plaintiffs are America's Communications Association, CTIA, NCTA, and USTelecom.
The law allegedly violates the First Amendment because it "limits ISPs from advertising or marketing non-communications-related services to their customers; and prohibits ISPs from offering price discounts, rewards in loyalty programs, or other cost-saving benefits in exchange for a customer's consent to use their personal information," the lawsuit claims. As for how the Maine law violates the Supremacy Clause, the lawsuit says it's "because it allows consumers to dictate (by opting out or declining to opt in) when ISPs can use or disclose information that they must rely on to comply with federal law, rendering 'compliance with both' state and the foregoing federal laws 'impossible.'"
Corporate privacy invasion should be illegal. (Score:5, Insightful)
We need a constitutional amendment to protect personal information.
Re:Corporate privacy invasion should be illegal. (Score:4, Funny)
Maybe stick it somewhere between the 3rd and 5th amendments? Seems like a good place to put it...
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The 4th Amendment protects your privacy from the government, not from corporations.
Re: Corporate privacy invasion should be illegal. (Score:2)
Under a regime of limited liability corporations with greater rights than human beings, the line between "government" and "corporation" is tenuous at best.
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Ancient dictatorship's penchant for censorship toyed with by people who think it fine to censor speech not their own.
What a novel generation!
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And it does so because when the US Constitution was written it was impossible to imagine a world of multi-national companies with a revenue rivaling that of countries and with the power to get laws changed just because they want them changed.
Re: Corporate privacy invasion should be illegal. (Score:2)
Citizens United ruling gave corporations broad rights to free speech. Combined with unlimited legal budget means the corps get to do whatever they want.
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"So you're saying if a corporation wanted to publish a book about a politician, Hillary Clinton, less than a month before an election, government could make that book illegal?"
Government lawyer: "Yes"
That's pretty much the case.
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You can't require people to give up fundamental rights as a condition of joining a Congressionally-defined group. People take their rights with them wherever they go.
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The ISPs are essentially arguing that doxxing is legal.
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The ISPs are essentially arguing that doxxing is legal.
Doxxing is the publication of information with the intent to harass and intimidate.
The publication is not illegal, only the harassment and intimidation.
ISPs are not doxxers.
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How do you think I feel about constant unwanted advertising, and its intended goal?
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How do you think I feel about constant unwanted advertising, and its intended goal?
It is not about how you feel. It is about the intent of the accused.
"Communicating a threat" is a mens rea offense. The prosecutor is required to show that the accused intended it to be a threat.
Mens rea [wikipedia.org]
Re:Corporate privacy invasion should be illegal. (Score:5, Insightful)
I don't think any amendment is required at all. Protecting the privacy of consumers is clearly within the powers of Congress and the States, and this legal challenge is obviously absurd. There are similar laws on the books binding insurance companies, banks and numerous other industries that collect personal information, so I hope the state tells the ISPs to find the nearest bridge to jump off.
Re:Corporate privacy invasion should be illegal. (Score:5, Insightful)
As long as judges continue to interpret corporations as entities entitled to the same Constitutional protections as actual humans, we're always in danger of lawsuits like this succeeding. We need to have some amendment that clearly lays out the limitations of corporate freedoms.
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We need to have some amendment that clearly lays out the limitations of corporate freedoms.
Or, when those corporations break the law, they "go to jail", like real people do. That means:
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Or, at the very least, the company's Board of Directors stands in for the "company as a person" when it comes to jail time and asset seizure. That would make the leaders of companies wary of breaking the law since their own necks would be on the line.
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As long as judges continue to interpret corporations as entities entitled to the same Constitutional protections as actual humans, we're always in danger of lawsuits like this succeeding. We need to have some amendment that clearly lays out the limitations of corporate freedoms.
That not the only obstacle in this case. The court also has to interpret stalking as speech.
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Which would be a limitation on individual freedoms, because corporations are just groups of individuals working together for a common purpose. This itself is protected by the "free association" clause of the 1st Amendment.
No they are not. Corporation are specific inventions that has specific rights independently of the group of individuals. One of those key rights the corporate veil that means investors are not liable for the crimes of their investments, which they would be if they acted as a non incorporated group of people. That whole issue with it being free from criminal repercusions puts corporations in a COMPLETELY different category. And no they are not group of people... not unless you want to go to jail for your pen
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This is already illegal. The people enforcing our laws are just stupid.
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Just declare that for ISPs the free speech zone is /dev/null
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Corporate privacy invasion
I simply call them "Privacy Rapists" - fits much better.
Re: Corporate privacy invasion should be illegal. (Score:2)
So why are ISPs being held to a different standard than Google, or for that matter Home Depot?
Godspeed, Maine... (Score:1)
I must be missing something (Score:2)
I probably read it wrong my first skim through, but the impression I got was the ISP had issue with not being able to use customer data without their permission. But clicking the link and skimming through there, it seems like the issue is that not all businesses are being treated the same. What I took from it was something to the effect of.... Why can companies like Google do this, but not us ISPs?
I mean couldn't the outcome of this end up being a broader law that would be inclusive of these services, and
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The difference is that you don't have to use Facebook or Google. They are fundamentally opt-in. If you don't want social media and search companies using your personal information, then you can simply not use them (and in some cases these online companies have at least some limited degree of opt out). With an actual ISP, basically they've got all your data flowing through their networks. Their ability to gather your personal information is right down at the low level network level, and in many cases, you've
Re:I must be missing something (Score:5, Insightful)
The difference is that you don't have to use Facebook or Google. They are fundamentally opt-in. If you don't want social media and search companies using your personal information, then you can simply not use them
Google is not opt-in. It's opt-out. The vast majority of websites are tied to Google through Google AdSense, and are tracking you without your knowledge or consent. You have to go out of your way to download software that blocks these trackers.
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But it is possible and there are lots of howtos on how to block Google etc with some browsers doing it automatically. I have one choice for an ISP and having access to the internet is becoming a requirement to function in society.
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That wasn't his claim. His claim is that the opt-out is possible and viable.
Someone else described Google as opt-in.
ISPs are not opt-in or opt-out, they are 'must use' if you want to access the internet.
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The difference is that you don't have to use Facebook or Google. They are fundamentally opt-in. If you don't want social media and search companies using your personal information, then you can simply not use them
Google is not opt-in. It's opt-out. The vast majority of websites are tied to Google through Google AdSense, and are tracking you without your knowledge or consent. You have to go out of your way to download software that blocks these trackers.
Except to EU citizens who are now asked on every other page to opt-in.
Would be less annoying if they didn't keep asking again every month to confirm the opt-in, and changing your saved preferences so you have to review them again each time.
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You can choose not to use Google (I mean, not really, but you can at least try).
You need an ISP.
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getting google to stop using you is much, much harder.
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Yeah there's a ton of trackers to block. Plus never use Android or Chrome. good luck w/that.
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Harder then moving to a different country to find an ISP who doesn't spy on you?
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Yes, it makes it harder, though for the average person,just finding a country that will allow immigration and has good internet is hard enough. You have to have in demand skills and/or a lot of money.
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I think one of the biggest reasons that this only applies to the ISPs is that it is easier to claim that the ISPs are local and the likes of Google are inter-state transactions. The state can regulate local ISPs but don't have the jurisdiction to regulate inter-state transactions like Google.
I realize that most of the ISPs would be multi-state corporations but since the actual transaction between the subscriber and the ISP is local it could be considered a local company (for the purposes of this bill). That
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Better question is.. why is this only in Maine, and only limited to ISPS?
It should be a nationwide thing, across the board.
Personal/identifiable information should not be a goddamn commodity.
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Not gonna happen with the current dotard in office.
Also not gonna happen with the center-right Democrats currently running.
Vote Bernie. It's our only hope.
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I was unaware that ISP spam (Score:5, Interesting)
was protected under the First Amendment.
It shouldn't be opt out. The default should be "DO NOT SHARE MY INFORMATION WITH ANYTHING OR ANYONE!"
I wonder what this law means for Windows telemetry? It's not an ISP, but...
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They seem to be trying to argue for opt-in, but that's a laugh. I imagine that's what the law was protecting against in the first place, when pointedly locking it out.
"Give us the waiver or we won't give you the 'discount' everyone gets" my ass. I wouldn't be surprised if economists have a formal term for pretending to have substance in negative space.
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I doubt that they are claiming spam is protected, more likely they are (correctly) concerned with the 'you may not offer' bits. What other businesses have THAT restriction?
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"You can't bribe folks to get them to do what you want"? Lots of businesses forbid that.
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It is needed because the ISPs are frequently in a local monopoly and will undoubtedly use that to force a waiver. The requirement is a result of continuous avarice and underhanded methods employed by the ISPs, which is what put them in this position in the first. They have no one to blame other than themselves for this.
Google will hopefully get their slap in the face just as Facebook and any other integrity-slurping entity.
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I doubt that they are claiming spam is protected, more likely they are (correctly) concerned with the 'you may not offer' bits. What other businesses have THAT restriction?
It said in the summary:
The law allegedly violates the First Amendment because it "limits ISPs from advertising or marketing non-communications-related services to their customers; and prohibits ISPs from offering price discounts, rewards in loyalty programs, or other cost-saving benefits in exchange for a customer's consent to use their personal information," the lawsuit claims.
1st amendement should be irrelevant (Score:2)
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Banks, most parts of the medical industry, even the phone company. Imagine your phone rings or you make a call and have to listen to an advert, based on your previous phone calls that the phone company listened into. Same with the mail though I guess that is a public company though how many people would be happy with a private snail mail company opening their mail and adding targeted ads to it.
HIPPA, bitches (Score:1)
That's why Americans get SPAM and targeted advertising for their obese bellies, drug addictions and other medical ailments: Wait, they don't.
It says much about corporate USA that they demand to monetize the existence of customers.
Federal law overrides state law as they well know, since it's why they can demand NDAs for their petty crimes.
Re: HIPPA, bitches (Score:2)
That's why Americans get SPAM and targeted advertising for their obese bellies, drug addictions and other medical ailments: Wait, they don't.
Wait, they DO!
Tell you what, open up your browser and google "obese bellies, drug addictions and other medical ailments" And surprise, surprise, your search results for days will include weight loss programs, ads for drugs to address the searched-for ailment, and drug addiction recovery programs.
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Whatever you do, don't google for shipping containers.
Oh crap.
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your search results for days will include weight loss programs, ads for drugs to address the searched-for ailment
My search results won't as I won't be searching for them.
As for these 'ads' you mention. What are they? Should I do something to enable them?
Copyright (Score:5, Interesting)
Point the megacorps at copyright law. They love it, so they'll respect privacy if the "private" information is "public, but copyrighted".
It's the only way out of the mess we've gotten ourselves into. Privacy is rabidly opposed, as it's been equated to abortion, so you can't get a recognition of the Right to Privacy, because nearly half of the US will vote it down as sounding like something that could be used to protect against anti-abortion laws.
You can't have privacy because anti-abortion zealots oppose it. So I see changes to how we copyright people will be the only way to get "privacy" back from our corporate overlords.
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This is bizarre and interesting. If you think about it, what would happen if a corporation was treated the same way that individuals are treated on the web? There would be some line past which information collection becomes corporate espionage, restraint of commerce, interference with copyright / licensing / trademark, etc. Lengthy contracts would ensue and it might become more difficult to force a company to sign their rights away in click agreements. Currently I think companies either ignore the issue or
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I so wish I had points. This needs to be a +5 something.
First Amendment? For corporations?! (Score:4, Insightful)
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Re: First Amendment? For corporations?! (Score:2)
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But here's the im
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Sorry, but no you can't just go setup an ISP of your own. You first need city approval. Since the duopoloy that runs your city has already bought the politicians, your request to start a business won't be happening.
Since we are talking about rights, I think most would agree that Internet access in USA is nearly mandatory to live a normal life. It might still be possible to completely avoid using the Internet but it would be really frustrating if not impossible.
This means Internet access should be treated as
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Sorry, but no you can't just go setup an ISP of your own. You first need city approval. Since the duopoloy that runs your city has already bought the politicians, your request to start a business won't be happening.
If you want to dig up the streets and lay fiber cable, then yes - want to set up a wireless ISP, probably not.
Since we are talking about rights, I think most would agree that Internet access in USA is nearly mandatory to live a normal life. It might still be possible to completely avoid using the Internet but it would be really frustrating if not impossible.
Are you serious? Millions of Americans choose to not have an Internet connection in their homes.
Telephone service can come in to the home on a copper pair.
Television can be watched over-the-air.
News gets delivered on thier front door stoop every morning or broadcast on local TV.
Music comes off spinning vinyl, rust dragged across a magnet, a spinning disc read by a laser, or in electromagnetic waves.
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You can't shop around for ISPs in 99% of the US, there's typically only 1 provider a the capacity any nerd or even a gamer would need
Bull. Nearly every metropolitan market has AT LEAST one phone company and one cable TV company, that gives every "nerd" or "gamer" two options.
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In the USA you have the freedom to shop around for an ISP.
After decades of nonstop consolidation and government assisted monopolization at all levels there is not much of a functioning ISP market left.
I tend to agree /w actual competitive functioning markets the role of government should be diminished. Likewise the absence of functioning markets necessitates managing the consequences of market failure.
That ISP has the freedom to use data sets.
In the U.S. ISPs have no such freedom to do whatever they please with the data available to them. They are subject to a wide range of legal constraints.
The consumer has the freedom to select that data sharing ISP.
Not in a dy
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Media corps were exempted from laws governing their speech, for obvious reasons. The mass production of speech is part of the first amendment, as is earning money from it.
The Supreme Court merely said those types of corporations hold no special privilege over others in speech.
Uhhh... (Score:1)
It's my data (Score:2)
You don't 'free speech' it to anyone.
How is this speech? (Score:2)
advertising or marketing non-communications-related services to their customers; and prohibits ISPs from offering price discounts, rewards in loyalty programs, or other cost-saving benefits in exchange for a customer's consent to use their personal information
How is any of this speech? If it isn't speech then how does the first amendment apply?
This is just as stupid as considering election donations free speech.
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Well, the sad fact of the matter is that it is completely legal to bring frivolous lawsuits into court if it can't be proven you are actually smart enough to know better.
This is not stopping them advertising the services (Score:2)
They could still advertise or market it.
It would be false advertising, and they could be sued for that, but that's their choice.
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It doesn't stop them "advertising or marketing non-communications-related services to their customers"
It just means they can't use customer data to fine-tune or target the ads and services.
It's a pretty stupid approach - if I've just bought a vacuum cleaner, I don't need to see ads for vacuum cleaners.
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advertising or marketing non-communications-related services to their customers; and prohibits ISPs from offering price discounts, rewards in loyalty programs, or other cost-saving benefits in exchange for a customer's consent to use their personal information
How is any of this speech? If it isn't speech then how does the first amendment apply?
This is just as stupid as considering election donations free speech.
When most donation goes to buy advertising, that's how it is speech. You have the right to mass produce speech, that's the freedom of the press in the first amendment. Kings would indeed control and outlaw printing presses as backdoor censorship.
"You can say it, but you can't say it to millions", sorry, no.
And this differs from this situation because what you list are the company trying to buy, from you, the right to sell your info. Why shouldn't the be able to at least make an offer?
Wow! (Score:2)
Q: When is a summary NOT a summary?
A: When it's 3 paragraphs long!
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It's not a summary -- it's an all-ary!
Truth in Labeling laws are illegal (Score:2)
Freedom vs Privacy (Score:2)
There is a simple maxim to judge this: Your rights end (Mr ISP) where my rights begin.
Which is why they always push the envelope of where the individual's rights begin with bogus arguments, such as these, to profit from peoples information.
Oh no! (Score:1)
Murder is free speech! (Score:2, Insightful)
Scumbags (Score:2)
We don't want to change our business model because it's TOO HARD for us and would make us do actual WORK, so we want everyone to shut the fuck up and let us go through their underwear drawer if we want to, and sell whatever information of yours we want to whoever we want because it make us money, and if you don't we'll hold our breath until we turn blue, then throw ourselves on the ground and have a hissy-fit like a 2 year old because we CAN. Waaah!
That's what these fuckstains sound like.
Bitch-slap the ISPs, tell them "FUCK NO", and threaten them with prosecution if they don't fucking cut it out.
If your 'business model' amounts to 'fuck your customers over as much as you can if it makes you money' then you are a bunch of assholes.
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Tell me I have to use theirs? Fine. I use HTTPS Everywhere, NoScript, and uBlox Origin, among other things. Good luck guessing what I'm actually looking at.
Try to tell me I can't use your 'service' unless I web-browse 'naked'? 'Fuck you', I tell them, my security is more important than your shitty ad sales.
Then there's email: you're skimming through my Very Much Private email?
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Don't you still have to go through their network to reach the rest of the Internet? Don't they still know the sites you visit even if you don't use their DNS?
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Corporations aren't people (Score:2)
And never will be.
I partly agree (Score:2)
I agree with first part that I
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The part that you seem to be missing is that they could offer "opt-out" internet plans for $500/mo or opt-in for $50/mo. Hence the limit put into the bill to limit how they market their plans. Unless there were some specified "no more than a 5% price difference between opt-in and opt-out plans", the ISPs would price your privacy out of reach so you would have no choice but to opt-in.
while on the subject of constitutional amendments. (Score:2)
We need a constitutional amendment to specify that companies are not people...
that should solve a lot of issues.
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No it won't. The Citizens United ruling was very clear -- it is the people in the corporations who retain their First Amendment rights, and not some right of the corporation itself-as-"corp"-oration. Congress may not strip rights as a cost of entry into Congressionally-defined groups -- The People take their rights with them.