The question is why the ISPs can't claim the same protections as The New York Times in selling this data. IOTW: is this a 'you know it when you see it' type of situation like pornography, or is there a real differentiator?
Privacy is a good one. I'd be fascinated to see how ISPs assert that publishing a news article is the same as selling/publishing all your search history or all your DNS history. And if it is your records why is it most peoples reaction is horror instead of happiness? Its because privacy has value. Which is why ISPs want to sell it.
Privacy isn't dead its just being sold as a commodity now. Without realistic permission and protection.
I'd go even further: the ISPs only have this data as a result of business dealing and such data is not expected to be shared. Sharing of my history is not necessary for providing me with internet. You want to allow accounting firms to share your financial records as well?
They are only doing it because there's profit. Not because its a necessary aspect for providing internet access. Sharing your accounting data is similar. Another example: what if you go for counselling with psychologist etc? Is that protected?
Yes, HIPAA is a good analogue to compare against here. The Maine law is the inverse of HIPAA- it applies to ISPs (hospitals) rather than the data (medical records).
Of course, Maine does not have the power to institute HIPAA like regulations for internet data and so do this instead. Nonetheless, I think the telecoms broadly have a point here.
That is a reasonable question in its own right, but it is not clear to me how the answer to the question would differ if the freedom of the press were based on the principle of corporations having (some of) the rights of individuals, rather than it being expressly, if vaguely, stated in the 1st. amendment.
Ultimately, I think you will find that a great deal of law (and, much more broadly, ethics) comes down to 'I know it when I see it' (or, perhaps, 'we (the people) agree that we know it when we see it'.) This can be a difficult thing for people with a somewhat rigidly rational approach to life to accept.
The original question is if you curtail the ISPs rights here, under what legal framework are you not curtailing the rights of NYT/Wikipedia/etc.
Pornography in law is famous because it is one of the few 'I know it when I see it' situations. While certainly the law lacks the rigor we enjoy in technical fields, it is a rare circumstance where that is the legal basis of an opinion.
The original question is not intended to be considered as a rigorous argument, as its author made clear. My point of entry was to introduce a fact that answered your specific question, and as far as I can tell, it stands as such.
While the law, for obvious reasons, rarely uses 'I know it when I see it' justifications, I suspect that that is what most ethical principles ultimately depend on, and to the extent that the law tries to be ethical, the same goes for it.
