As America struggles with a deadly and historic health crisis, millions of Americans risk getting kicked offline due to economic hardship. At a time when stable access to power, broadband, and water are essential for survival, government agencies tasked with representing and defending the public welfare have been asleep at the wheel.

Millions of Americans risk losing access to essential utilities as overdue bills pile up thanks to the COVID-19 crisis. With only 21 states prohibiting utilities from disconnecting impacted users, roughly 179 million Americans risk losing these essential lifelines as bills pile up and their economic woes accelerate.

It’s a problem that extends to broadband connectivity. Data suggests Americans pay some of the highest prices in the developed world for broadband. The pandemic has exacerbated the problem, forcing countless students and teleworkers to huddle around fast food restaurants because broadband isn’t available, or isn’t affordable, in their neighborhood.

While millions of Americans face a mountain of growing utility bills — they’ve seen little help from the federal government.

Back in March the Trump FCC announced with great flourish that it had solved the problem with its “Keep Americans Connected” pledge, an entirely voluntary agreement with broadband providers who agreed they wouldn’t impose late fees or kick users offline during the crisis – at least temporarily.

Despite signing the pledge, some of the nation’s largest ISPs proceeded to ignore it entirely, kicking struggling and some instances even disabled users offline, despite repeated assurances this wouldn’t happen. There was little effort by the FCC to confirm ISPs were living up to the pledge or other pandemic-related promises, such as making Wi-Fi hotspots available to the public, suspending arbitrary bandwidth usage caps and overage fees, and creating or expanding low-cost broadband offerings for low-income Americans.

Despite an accelerating pandemic, the hollow pledge came and went quickly, expiring quietly at the end of June with little fanfare and no substantive FCC action. When pressured by Congress as to why the agency hadn’t done more, the agency punted the problem back to Congress, stating it could only act if lawmakers gave broadband providers more money.

So what were the results of the Keep America Connected pledge and the other promises ISPs made to address the pandemic? Nobody knows. The FCC doesn’t bother to collect data on how many broadband subscribers have been kicked offline during the pandemic due to non-payment. It doesn’t have a clue how many Americans have been disconnected as they face economic collapse, and there’s little to no indication that the agency under Trump has any intention of learning.

Nor does the FCC know whether any of the promised low-cost broadband offerings have made a dent in the tens of millions of Americans who lack broadband either because they can’t afford it, or because they don’t have access to a broadband network at all.

To make matters worse, the Trump FCC has eliminated FCC legal authority over broadband providers and popular consumer protections that would have protected U.S. consumers from bogus fees, surprise surcharges, and predatory behavior during the crisis. Without legal authority over broadband providers, the agency can’t hold any of those companies to their promises — they can simply walk away without penalty. Many already have.

Pinky swears simply aren’t adequate to ensure that struggling Americans can work, learn, have access to health care, and communicate during an historic crisis.

The Communications Act of 1934 gives the FCC ample flexibility to ensure the public is protected during a national emergency. But when it comes to broadband internet access, this FCC is powerless by choice, leaving consumers crippled by debt facing the loss of essential services.

The Biden FCC must make restoring the FCC’s authority over broadband providers its first priority. It is essential to ensuring that all Americans remain connected during this crisis and the inevitable crises to come. It is also essential to protect consumers from price gouging, account termination, privacy violations and unfair market practices.

The next FCC must also collect more accurate data about who does and doesn’t have broadband and why they don’t have it. The FCC’s current data grossly overstates the number of Americans who have access to broadband and doesn’t take into account the principal reason many don’t adopt broadband – cost. When the broadband industry makes promises to protect consumers and close the digital divide, the impact should be documented and made public.

Press releases and promises won’t close the digital divide – effective policies and strong oversight will. The American people deserve an FCC that’s committed to ensuring that everyone has access to affordable and robust broadband.

Gigi Sohn is a Distinguished Fellow at the Georgetown Institute for Technology Law and Policy and a Benton Senior Fellow and Public Advocate. She served as Counselor to Former FCC Chairman from November 2013-December 2016.

One of the most important privacy cases you?ve never heard of is being litigated right now in a federal district court in Maine. ACA v. Frey is a challenge by the nation?s largest broadband Internet access providers to a Maine law that protects the privacy of the state’s broadband Internet users. If the broadband providers prevail, this case could eliminate sector-specific privacy laws across the nation, foreclose national privacy legislation, and have broad implications for broadband regulation generally.

In May 2019, the Maine legislature overwhelmingly passed LD 946, “An Act to Protect the Privacy of Online Consumer Information.” The law largely tracks the now-repealed FCC?s 2016 broadband privacy rules, requiring broadband providers to obtain customer consent before disclosing, selling or otherwise using customer personal information. When the Maine bill was being considered, broadband providers complained that the law didn’t apply to online companies like Google, Facebook, and Amazon. If everyone was treated the same, they claimed, they would support privacy legislation.

But the industry’s lawsuit shows that its true intent is to avoid privacy regulation of any kind. Instead, they claim that giving consumers any control over their own data violates the First Amendment rights of the broadband providers to market goods and services. The industry also claims that by targeting only broadband providers, and not edge providers or any other company, the law is based on their status as a “speaker” and should be subject to “strict scrutiny” under the First Amendment, which requires a law to be “narrowly tailored to serve a compelling state interest.”

The court should reject these arguments. Should it accept them, it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional “speaker-based” violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.

The broadband industry argues that there?s no good reason to regulate it differently than any other company. But their claim that “no special characteristics of ISPs justify that distinction” doesn?t reflect reality. Broadband access providers do have “special characteristics” that other companies?including edge providers?do not.

As the FCC found in 2016, a broadband provider “sits at a privileged place in the network, the bottleneck between the customer and the rest of the network.” This gatekeeper position allows broadband providers to see every piece of digital information a customer sends and receives over the Internet while on the network, often including the content of the information. Broadband providers see every website a customer visits, every communication they make, every device they use and, in many cases, every location they have visited.

Despite Big Broadband?s breathless objections, the principles underlying Maine?s broadband privacy law are nothing new. Instead, the law fits within a longstanding tradition of state and federal laws that prohibit those that deliver messages of all kinds?whether paper or electronic?from disclosing any information relating to those packages; in other words, a duty of confidentiality. This “common law” covers everyone from the post office to the telephone company to a broadband provider.

The reasoning is simple: in order to receive service, customers must expose their personal information to those entities. Like the post office or a telephone company, broadband providers shouldn’t be allowed to unfairly exploit that information or reveal that information to others for profit. None of these laws violate the First Amendment. If this duty of confidentiality were found to be unconstitutional, all these laws, and those that protect lawyer/client, doctor/patient, and other fiduciary relationships would fall as well.

In any case, the core behavior prohibited by the statute?collecting and selling data?isn’t even speech. The First Amendment typically protects “expressive” activity?something meant to convey a message. Instead, the law regulates the commercial exchange of data. Just because the data could potentially transmit information does not make it expressive. My former colleagues at Public Knowledge said it best in a “friend of the court” brief supporting the State of Maine:

Selling a collection of data to be used as a tool to develop products, enhance a search engine or develop marketing strategies is no more “expressive” than selling inside information to enhance a stock trade or selling paper at a retail outlet. The customer data is not commercial speech “proposing a transaction,” it is the object of the transaction. [.?.?.?] No one has ever found that regulation of raw materials ? such as marble or paper ? that imposes incidental burdens on speakers as well as others raises First Amendment concerns.

While the broadband industry should lose this case, there are never any guarantees. A decision favoring the broadband industry would put every consumer privacy bill and law?including those seeking to regulate the data collection and data protection powers of big technology companies, retailers, banks, hotels, credit reporting agencies and others?at risk, whether or not they are sector specific. Worse, a broad ruling in favor of the industry’s First Amendment “rights” could put other regulations at risk, including net neutrality and other efforts to protect consumers and promote competition. While normally a federal district court case in the sparsely populated state of Maine wouldn?t raise much nationwide attention, ACA v. Frey should. The future of consumer privacy protections may depend on it.

Jeff Gary is a project manager at Georgetown Law, where he runs technology-focused educational and training programs for state attorneys general and researches digital advertising. Previously, he worked in congress, federal agencies, and civil society on privacy, content moderation, and data security policy. He is a graduate of Georgetown Law and holds an M.A. in sociology of religion from King’s College London.

Gigi Sohn is a Distinguished Fellow at the Georgetown Institute for Technology Law and Policy and a Benton Senior Fellow and Public Advocate. She served as Counselor to Former FCC Chairman from November 2013-December 2016. While at the FCC, she worked on the 2016 Broadband Privacy Rules. She testified before the Joint Committee on Energy, Utilities and Telecommunications of the Maine Legislature on April 24, 2019 in support of the LD 946, Maine?s Broadband Privacy Law.