Maryland Lawmaker Wary of Going 'Out on a Limb' on Net Neutrality
ANNAPOLIS -- A Maryland House vice chair asked why the state should pass net neutrality given litigation against other states and possible constitutional hurdles. The Maryland House Economic Matters Committee heard testimony Wednesday on a hybrid net neutrality/ISP privacy bill (HB-957). Two other privacy bills at the hearing covered topics that could be part of an effort this summer by a working group led by Del. Ned Carey (D) to develop a comprehensive data privacy bill for next year, said Comcast Vice President-State Government Sean Looney.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
HB-957 would set net neutrality rules, prohibit state contracts with ISPs that violate net neutrality rules like those rescinded by the commission, and revive FCC broadband privacy rules repealed by Congress. It would take effect June 1. Last year’s edition failed after a February 2019 hearing in which telecom and cable industry witnesses advised the state to wait for ruling by the U.S. Court of Appeals for the District of Columbia Circuit on the FCC net neutrality order (see 1902060057). A 2018 version cleared the House but stalled in the Senate (see 1804130040).
Vice Chair Kathleen Dumais (D) asked why Maryland “should go out on a limb” before court decisions for other states facing litigation by ISPs. California and Vermont net neutrality laws are on hold after ISPs sued, noted Dumais. “How do we get beyond the supremacy clause of the U.S. Constitution?”
“ISPs will challenge anything,” said Gigi Sohn, Benton Institute senior fellow. In Mozilla, the D.C. Circuit said the FCC can’t pre-empt state laws like the one Maryland proposes, she noted. “It was an invitation.” The D.C. Circuit said the FCC can’t pre-empt states, agreed Steve Sakamoto-Wengel, a consumer protection counsel for Maryland Attorney General Brian Frosh (D). The AG office supports HB-957, he said. Frosh was one state AG that challenged FCC repeal. Del. Mark Fisher (R) disagreed with some advocates, doubting network operators would invest if they face restrictions. The bill might have more support if it addressed only privacy, he said.
State leaders must “step in” because the FCC “abdicated its responsibility to protect internet users,” said Free Press Action Fund co-CEO Craig Aaron. Don’t trust ISPs, he warned. Common Cause and Consumer Reports officials also supported the bill.
Net neutrality supporters have been declaring the end of the web for the three years the bill has been in the legislature, but the internet has become faster and more reliable, said Comcast's Looney. Don’t weave a patchwork of state net neutrality laws, said cable lawyer Matthew Brill of Latham and Watkins: the supremacy clause precludes state action. Wireless users are protected, and it’s “untenable” for states to regulate a national service, said CTIA Director-State Legislative Affairs Lisa McCabe.
“We had a federal solution,” but industry advocated for its repeal, responded HB-957 co-sponsor Del. Lorig Charkoudian (D).
Comcast urged lawmakers to delay geolocation and biometrics proposals by Del. Sara Love (D) so the privacy working group can look at it this summer. HB-307 proposes biometric data retention rules. HB-1389 would require opt-in consent and disclosure before businesses can collect, use, store or disclose geolocation information from a location-based app.
Frosh's office supports Carey's bill (HB-237) to expand the Maryland Person Information Protection Act (MPIPA), said Assistant AG Hanna Abrams. “If you collect data, protect it,” she said. “If something happens, let people know.”
HB-237 would add genetic and location data to the definition of personal information, broaden the businesses required to implement security procedures to protect personal information, require quicker data breach notifications, and seek additional information to be provided to the attorney general.
Consumer Reports supports requiring manufacturers to secure IoT devices under Carey’s HB-888, said Policy Counsel Katie McInnis. Del. Warren Miller (R) raised a concern the bill may be too broad by including Bluetooth.