HOW WOULD THE FCC’S OPEN INTERNET PROPOSAL IMPACT THE TRENDS OF LAWFUL SURVEILLANCE AND PRIVACY?
On February 4th the FCC unveiled its latest proposal to establish regulations it considers necessary for the future success of broadband Internet access.
The “Open Internet” policy would declare broadband Internet access a “telecommunication service” under Title II of the Communications Act, thereby giving the FCC jurisdiction to regulate the service as “common carriage.” The Title II jurisdiction would cover all ISP platforms, including DSL, cable modem, wireless, and Wi-Fi. The jurisdiction would not cover services such as VoIP, which run over the broadband pipes.
How would the Open Internet policy impact the trends of lawful surveillance and subscriber privacy?
The Open Internet Policy’s Bright Line Rules
The FCC would not impose all Title II regulations on Internet access. For example, there would be no rate regulation. Instead, the agency would establish only certain “bright line rules” of “nondiscrimination” to ensure the Internet remains open to content providers, users, and devices that connect to the Internet.
The bright line rules would ensure:
- No blocking of “legal content, applications, services, or non-harmful devices.”
- No throttling – that is, broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
- No paid prioritization – broadband providers may not create “fast lanes” favoring some lawful Internet traffic over other lawful traffic in exchange for compensation. Likewise, broadband providers could not prioritize the offerings of their affiliates.
Let’s say you’re a Verizon Wireless subscriber and you order a Netflix movie on your iPad. The bright line rules would prevent Verizon from blocking the film, even if it offers an equally valuable video-streaming service.
In addition to the bright line rules, the FCC Open Internet policy would, among other things, subject ISPs to the Customer Proprietary Network Information (“CPNI”) mandate. The CPNI mandate essentially requires telecommunications carriers to protect the privacy of customer account information.
Consumers and content providers such as Netflix and Google generally support the Open Internet proposal, whereas ISPs such as Verizon and Comcast oppose it. The latter group has vowed to litigate any Open Internet rules the FCC may adopt. The expected adoption date is February 26th. From that point it could take a year or more for the D.C. Court of Appeals to rule on the validity of the FCC action.
Impact on Lawful Surveillance
ISPs are already subject to the Communications Assistance for Law Enforcement Act (“CALEA”), independent of the Communications Act. CALEA requires ISPs, as well as two-way interconnected VoIP providers and traditional telecommunications carriers, to install certain lawful intercept capabilities in their networks.
The jurisdiction of CALEA will not change as a result of the Open Internet rules. However, if the rules achieve the FCC’s stated objective of maintaining a level Internet playing field for users, content, and devices, expect a continuation of the trend law enforcement calls “going dark.”
Law enforcement complains that the 1994-era CALEA statute has failed to keep pace with the proliferation of Internet services. The FBI has already entered into discussions on Capitol Hill to update CALEA. Arguably, the more the proposed FCC policy promotes new Internet services, the more law enforcement will encounter technical difficulties when conducting lawful surveillance. That trend, in turn, could produce more pressure on Congress to update CALEA.
Impact on Privacy
The Open Internet Rules would give also ISP subscriber account information the same privacy protection as telephone customer account information and wireless carrier account information. It’s a common sense clarification because subscribers have just as great an interest in the privacy of their ISP relationships as their other communications company relationships. In fact, subscribers commonly receive all types of communication from the same provider.
The major service providers have already established privacy protection programs for all their subscriber data. So the imposition of the CPNI mandate on ISPs should cause little or no additional burden.
Applying the CPNI mandate to ISPs not only formalizes sound privacy policy but probably does not affect the alleged “going dark” problem. Two-way interconnected VoIP providers and telecommunications carriers have already been subject to the CPNI mandate for years, yet law enforcement has not publically complained that the mandate has frustrated lawful surveillance. That is because the mandate contains an exception for disclosures of customer account information that are “required by law.” Court surveillance orders and other due process requests from law enforcement would qualify for that exception.
If the Open Internet proposal becomes law, the pressure to update CALEA would probably continue to rise. Meanwhile, privacy-conscious ISP subscribers would be reassured that the privacy of their ISP account information is well-protected.