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Archive for March, 2010

April 28 Workshop on Approaches to Preserving the Open Internet Workshop Scheduled

March 26th, 2010 by Robert Cannon - Senior Counsel for Internet Law - Office of Strategic Planning & Policy Analysis, FCC

Bob CannonThe FCC will hold its next workshop in the Open Internet proceeding on  Wednesday, April 28, at 9:30 am, at the Jackson Federal Building in Seattle, Washington.

As previous workshops have shown, the Internet’s openness is integral to the success of the online ecosystem, enabling innovation, investment, speech, democratic engagement, and consumer benefits. Called Approaches to Preserving the Open Internet, this workshop will address how the Internet’s openness can best be preserved, including by examining historical and ongoing efforts to protect Internet openness in the U.S. and other countries, and by discussing the key technological, economic, and legal considerations relevant to the need for and substance of the Commission’s proposed open Internet policies.  Panelists will address these issues across Internet access platforms, including mobile wireless broadband.

The workshop will be streamed live at FCC Live.  You can submit question to the panelists during the workshop via e-mail, or on twitter using #Oidiscuss.  Additional information concerning the workshop, including the participating panelists and the agenda, will be posted to the Workshop webpage at

What does “Open Internet” have to learn from the Electronic Communications Privacy Act?

March 9th, 2010 by Robert Cannon - Senior Counsel for Internet Law - Office of Strategic Planning & Policy Analysis, FCC

Bob CannonIssues similar to “reasonable network management” come up in the context of wiretaps and specifically the Electronic Communications Privacy Act (ECPA).  ECPA is described as a rule governed by exceptions.  The rule is, “thou shall not listen in on other people’s communications,” where “thou” is everyone including ISPs.  One of the exceptions to ECPA is that ISPs can intercept communications when necessary for the rendition and protection of their network.  In the relevant provision, ECPA states

It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

18 U.S.C. § 2511(2)(A)(i) (emphasis added).

ECPA attempts to draw a line between network activity that is necessary for the rendition of the service, and that which is not necessary and therefore potentially an illegal wiretap.  But what does “necessary for the rendition and protection of service” mean?  Several courts have considered this question.  According to these courts, actions “necessary for the rendition and protection of service” includes intercepting communications from a cloned cellphone in order to determine its source, United States v. Pervaz, 118 F.3d 1, 5 (1st Cir. 1997), monitoring misuse of a network, United States v. Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993), and intercepting communications from illegal devices in order to detect theft of service, United States v. Freeman, 524 F.2d 337, 341 (7th Cir. 1975).

This does not, however, give license to ISPs to do anything in the name of rendering or protecting service. According to DOJ, ISPs “should attempt to tailor their monitoring and disclosure to that which is reasonably related to the purpose of the monitoring.”  One court states that “there should be a ’substantial nexus’ between the monitoring and the threat to the provider’s rights or property.” United States v. McLaren, 957 F. Supp. 215, 219 (M.D. Fla. 1997). For a more in depth discussion of ECPA and this particular exception, see DOJ’s 2009 Search and Seizure Manual, p. 172: The Provider Exception.

As the FCC examines the Open Internet proceeding and the possible distinction between reasonable and non-reasonable network management, can anything be learned from ECPA and its surrounding caselaw, including the concept of “activity necessary for the rendition and protection of that service”?

Open Internet Reply Comment Deadline Extended to April 8, 2010

March 3rd, 2010 by Sharon Gillett

In response to requests from a number of parties, the FCC announced last week that we’re extending the deadline for filing reply comments in the open Internet proceeding to April 8, 2010.

The FCC doesn’t ordinarily grant requests for extensions of time, but parties asked for more time to respond to the many filings made in the opening round of comments, and to incorporate issues raised in the National Broadband Plan, which was initially scheduled to be delivered to Congress in mid-February but will now be delivered in mid-March. We felt it was appropriate to give a one-time extension of the reply comment deadline, expecting that this additional time will help everyone develop complete, useful, and data-focused replies. If you’re interested in seeing what others have filed, you can search for comments here for Proceeding Number 09-191. We look forward to hearing from you by April 8.