The Trade groups also say Maine’s law violates the US Constitution’s Supremacy Clause, which gives federal law priority over state laws that conflict with US law. The Maine law “violates the Supremacy Clause 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,’ “the trade groups claimed. Ongoing battle against state laws The lawsuit is part of a larger battle between ISPs and states that are trying to impose regulations stronger than those enforced by the federal government. One factor potentially working against the ISPs is that the Federal Communications Commission’s attempt to preempt all current and future state net neutrality laws was Blocked by a federal appeals court ruling in October . The FCC
claimed it could preempt state net neutrality laws because state-imposed rules would subvert the federal policy of non- regulation. Similarly, the new lawsuit against Maine claims the state privacy law conflicts with the Congressional decision to eliminate the Obama-era FCC’s broadband rules, and it cites the Trump-era FCC’s view that ISPs’ privacy practices shouldn’t be regulated any differently than those of other online businesses. But while the FCC was allowed to eliminate its own net neutrality rules, the judges said the commission “lacked the legal authority to categorically abolish all States’ statutorily conferred authority to regulate intrastate communications. ” When it defends its privacy law against the industry lawsuit, Maine would likely argue that it has authority to regulate broadband-industry practices that the federal government has chosen not to regulate.