Home > Uncategorized > Filtering and Sniffing after FCC v. Comcast

Filtering and Sniffing after FCC v. Comcast

The topic du jour is definitely the DC Circuit’s decision in FCC v. Comcast – and what it will mean for net neutrality, and the FCC’s plan to regulate broadband access and consumer protections on the Internet. The decision – which states that the FCC does not have the authority under current law to regulate how ISPs police traffic on their networks – will most certainly impact the FCC’s implementation of its recently announced broadband plan.  Already, the agency has decided not to pursue certain cybersecurity, privacy and consumer protection policies in the wake of yesterday’s decision.

The DC Circuit crafted a careful and narrow decision, which will probably survive appeal (if indeed the FCC chooses to take that route).  The ruling focuses predominantly on the question of whether the FCC had explicit or implicit jurisdiction to regulate Comcast.  It leaves open however, the question of when and how ISPs can use filtering technologies to detect content.

All ISPs employ filtering technologies to some degree.  These technologies filter or “sniff” data packets while they are en route to their final destination.  The packets usually consist of two parts: control information and user data (also known as the payload). Shallow packet inspection involves examination of the control data – to allow an ISP to route content to the right server for example.  A deeper form of packet inspection allows the ISP to check for viruses and other malware that might be attached or embedded in content.  But it’s deep packet inspection that concerns most privacy advocates.  This is a more intense process that allows the ISP to literally peer in and scan the payload portion of the packet – to serve ads, or track user behavior.  The NSA uses the technology in its terrorism surveillance efforts. Certain governments –such as China – use deep packet inspection to censor content.

The FCC complaint which led to yesterday’s decision was filed against Comcast by Free Press, Public Knowledge, and several other advocacy groups and academics.  It suggested that the company was using some sort of deeper detection technology to “throttle” consumers’ use of P2P applications like BitTorrent. Comcast defended its actions, stating that it had a right to slow access in instances when network resources are scarce, because applications like BitTorrent consume large amounts of bandwidth.  In their FCC petition, the Free Press / Public Knowledge coalition disagreed, stating that Comcast had violated FCC policy which entitles consumers to “access lawful Internet content… and run applications and user services of their choice.”

The FCC investigated the matter and sought public comment.  Its investigation showed that Comcast was restricting user downloads of large files 24/7 – even when network resources were not scarce.  There was no suggestion by the FCC that Comcast used deep packet inspection technology to restrict downloads – although some have noted the company’s relationship with Sandvine, a company specializing in “network policy control solutions.”

After concluding its investigation, the FCC issued an Order, stating that it had the jurisdiction to regulate Comcast’s network management practices.  Furthermore, the agency decided to resolve the issue through adjudication – and not through the notice and comment cycle of typical FCC rulemaking.  In his press release announcing the Order, then FCC Chairman Kevin Martin analogized the situation to the US Postal Service opening your mail and then deciding, based on the contents contained therein, that it was either going to delay sending your mail or not send it altogether.

Comcast challenged the Order successfully in District Court; the FCC appealed, resulting in yesterday’s decision.  Where does the agency go from here? FCC Chairman Genachowski has stated that the agency will find other legal authority to pursue its stated goals if it loses its case against Comcast.  With a precedent like yesterday’s decision on the books, the agency will most certainly need Congress to pass a law giving it that explicit authority.  Enabling legislation of this type could take years – particularly given the special interests involved in this particular debate.  In the meantime, perhaps the FCC should think about reversing its 2002 decision deregulating broadband – a suggestion made by Public Knowledge’s Gigi Sohn on the PBS News Hour earlier this evening.

Until these issues are resolved, the legality of using filtering or sniffing technologies to block or slow down questionably large files on networks remains unclear. Comcast, in its muted response to the DC Circuit decision, indicates that it intends to keep working with the FCC to “…preserve a vibrant and open Internet.”  Will this intention change if its merger with NBC Universal is approved?  Would the merged entity employ such techniques to ensure that its own content is not being downloaded illegally?  Active network management can rob an ISP of its safe harbor for copyright infringement under the DMCA – but what happens if the network provider and the copyright owner are one and the same?

This case started with consumer complaints.  Yet the court’s decision does not provide any guidance for consumers who believe that they are being denied efficient broadband access due to their web surfing appetites. Professor Paul Ohm of the University of Colorado has an interesting approach – in this delightful article on net neutrality and privacy.  In it, he suggests that consumers look to the ECPA to address concerns with ISP discrimination against large file downloads.  ECPA of course, is the focus of its own reform effort – the move to secure digital due process.  Many of the same companies that support ECPA reform also support net neutrality.  Perhaps the move to reform ECPA will provide a way to obtain some legal guidance on how and when packet sniffing technologies can be used by ISPs to filter content.  But even with such clarity, the question of which agency should regulate the Internet – FCC, FTC or even the Department Commerce – will remain open.

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