Tuesday, June 13, 2017

FTC Announces Third PrivacyCon, Calls for Presentations

FTC Announces Third PrivacyCon, Calls for Presentations


Building on the success of its two previous PrivacyCon events, the Federal Trade Commission is announcing a call for presentations for its third PrivacyCon, which will take place on February 28, 2018.

The 2018 PrivacyCon will expand collaboration among leading privacy and security researchers, academics, industry representatives, consumer advocates, and the government. As part of this initiative, the FTC is seeking general research that explores the privacy and security implications of emerging technologies, such as the Internet of Things, artificial intelligence and virtual reality. The 2018 event will focus on the economics of privacy including how to quantify the harms that result from companies' failure to secure consumer information, and how to balance the costs and benefits of privacy-protective technologies and practices.

"Deepening the FTC's understanding of the economics of privacy and consumer harm in the context of information exposure is integral to the FTC's enforcement and educational efforts," said Acting FTC Chairman Maureen K. Ohlhausen. "I have made studying the economics of privacy a centerpiece of my consumer protection agenda, and I hope that PrivacyCon 2018 will highlight important research in this area."

The call for presentations seeks research and input on a wide range of issues and questions to build on previously presented research and promote discussion, including:

  • What are the greatest threats to consumer privacy today? What are the costs of mitigating these threats? How are the threats evolving? How does the evolving nature of the threats impact consumer welfare and the costs of mitigation?
  • How can companies weigh the costs and benefits of security-by-design techniques and privacy-protective technologies and behaviors? How can companies weigh the costs and benefits of individual tools or practices?
  • How can companies assess consumers' privacy preferences?
  • Are there market failures (e.g. information asymmetries, externalities) in the area of privacy and data security? If so, what tools and strategies can businesses or consumers use to overcome or mitigate those failures? How can policymakers address those failures?

Submissions for PrivacyCon must be made by November 17, 2017.

The Federal Trade Commission works to promote competition, and protect and educate consumers. You can learn more about consumer topics and file a consumer complaint online or by calling 1-877-FTC-HELP (382-4357). Like the FTC on Facebook(link is external), follow us on Twitter(link is external), read our blogs and subscribe to press releases for the latest FTC news and resources.


Juliana Gruenwald Henderson(link sends e-mail)
Office of Public Affairs

Kristen Anderson
Bureau of Consumer Protection

Friday, June 09, 2017

Is an IP Number the Same as a Telephone Number? :: U.S. v Ulbright, 2nd Cir. May 31, 2017 (The Silk Road Case)

Both telephone numbers and IP numbers function as network addresses. Are they analogous in terms of law and policy? The recent Second Circuit decision U.S. v Ulbright (The Silk Road Case) concludes that they are. But of course the answer to this question depends on the context in which it is asked.

Source: Wikicommons
CASE SUMMARY: "Defendant Ulbricht appeals from a judgment of conviction and sentence to life imprisonment entered in the United States District Court for the Southern District of New York. A jury convicted Defendant of drug trafficking and other crimes associated with his creation and operation of Silk Road, an online marketplace whose users primarily purchased and sold illegal goods and services. He challenges several aspects of his conviction and sentence, arguing that (1) the district court erred in denying his motion to suppress evidence assertedly obtained in violation of the Fourth Amendment; (2) the district court committed numerous errors that deprived him of his right to a fair trial, and incorrectly denied his motion for a new trial; and (3) his life sentence is both procedurally and substantively unreasonable. Because the appellate court identified no reversible error, it AFFIRMED Defendant's conviction and sentence in all respects."

In this post, we look at Defendant's claim that evidence was obtained in violation of the Fourth Amendment, specifically that for purposes of Trap and Trace, an IP number is not functionally the same as a telephone number.

FACTS: Suspecting Defendant's involvement in Silk Road, law enforcement agents (LEAs) obtained five pen/trap orders pursuant to 18 U.S.C. § 3121-27. "The orders authorized LEAs to collect IP address data for Internet traffic to and from Defendant's home wireless router and other devices that regularly connected to Defendant's home router." "The pen/trap orders did not permit the government to access the content of Defendant's communications, nor did the government 'seek to obtain the contents of any communications.'"

"According to Defendant, the government's use of his home Internet routing data violated the Fourth Amendment because it helped the government match Defendant's online activity with DPR's use of Silk Road. Defendant argues that he has a constitutional privacy interest in IP address traffic to and from his home and that the government obtained the pen/trap orders without a warrant, which would have required probable cause."

RULE: "The government obtained the orders pursuant to the Pen/Trap Act, which provides that a government attorney "may make [an] application for an order . . . authorizing or approving the installation and use of a pen register or a trap and trace device . . . to a court of competent jurisdiction." 18 U.S.C. § 3122(a)(1). A "pen register" is defined as a "device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted," and "shall not include the contents of any communication." Id. § 3127(3). A "trap and trace" device means "a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication." Id. § 3127(4). Like pen registers, trap and trace devices may not capture the "contents of any communication." Id."

The level of legal process required is an application to a court, unlike a Fourth Amendment search and seizure that requires a warrant. LEAs receive transactional information about the communications, such as the communications' addressing. Courts have held that pursuant to the Third Party Doctrine, individuals have no expectation of privacy in transactional information - individuals turn this information over to network providers in order to set up and complete communications.

It is settled caselaw that telephone numbers are "addressing" that fall within this precedent. They are network addresses used by individuals given over to the network provider to set up and complete telephone calls. According to the Supremes,
Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.
Smith v. Maryland, 442 U.S. 735, 743-44 (1979) .

ISSUE: Is an IP number an "address" analogous to a telephone number?

ANALYSIS: Federal courts have concluded that IP numbers provide the same function as telephone numbers and fall under the Third Party Doctrine in the same way as telephone numbers.
E-mail and Internet users, like the telephone users in Smith, rely on third-party equipment in order to engage in communication. Smith based its holding that telephone users have no expectation of privacy in the numbers they dial on the users' imputed knowledge that their calls are completed through telephone company switching equipment. 442 U.S. at 742, 99 S.Ct. 2577. Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the "switching equipment that processed those numbers," e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party's servers. Id. at 744, 99 S.Ct. 2577.
United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008).

The 2nd Circuit in Ulbright agrees with the 9th Circuit, stating that "the recording of IP address information and similar routing data, which reveal the existence of connections between communications devices without disclosing the content of the communications, are precisely analogous to the capture of telephone numbers at issue in Smith… The substitution of electronic methods of communication for telephone calls does not alone create a reasonable expectation of privacy in the identities of devices with whom one communicates."

HOLDING: IP numbers are analogous to telephone numbers for purposes of Trap and Trace and Pen Registers.

WHERE IP NUMBERS and TELEPHONE NUMBERS INTERSECT: There are other points where IP numbers and telephone numbers intersect. Recently the FCC in the 2015 Open Internet order revised the definition of " telecommunications service" to include networks that utilize the North American Numbering Plan as well as ICANN's IP address resource. When the FCC then applied privacy regulations to the Internet, the Internet Society adamantly argued that IP numbers are not analogous to telephone numbers. . However, ISOC elsewhere indicated support for the Open Internet. ISOC's concern appeared to be less about the analogy and more about applying "telephone era regulations to the Internet."

The analogy between IP numbers and telephone numbers has also arisen in the context of Regional Internet Registries (RIRs) who have grappled with address transfers and whether network addresses are the property of the assignee or of the network. FCC precedent has held that network addresses are the property of the network, not the subscriber - a policy necessary to ensure the efficient operation of the network. A policy that views network addresses as the property of subscribers encumbers the network resource in bankruptcy proceedings, trademark disputes, mergers and acquisitions, and speculations. Following the precedent of the telephone numbering resource, RIRs have contractual terms that state that IP numbers are the property of the RIRs and not assignees.

Finally, IP Numbers and telephone numbers intersect with VoIP. iVoIP providers need access to the telephone number resource in order to assign telephone numbers to their customers and must make number portability available. They also need to be able to interconnect with other North American Numbering Plan networks (in other words, reach other network end points addressable by telephone numbers). See also ENUM.

CITATION: U.S. v Ulbright, 2nd Cir. May 31, 2017 (The Silk Road Case)

Sunday, April 30, 2017

1995 :: April 30 :: NSFNET Decommissioned

April 30th, 1995 marked the end of the wildly successful NSFNET.  NSFNET was born out of the desire to expand the Internet community beyond a Department of Defense playground, extending it to the full academic community.  It ended with the successful privatization of the Internet, transferring backbone services to commercial networks, and establishing key commercial Internet interconnection sites.

NSFNET gave us the early commercial topology of the Internet, with Tier 1 backbones, Tier 2 regional networks, and Tier 3 local networks. NSFNET gave us our first dedicated backbone and the first mbps backbone.  It also gave us the crucial Network Access Points, known today as Internet eXchange Points.  The contractors that bid for the opportunity to build and operate NSF's network learned from their experience and launched into the information economy as the leading commercial Internet networks. A government investment of millions of dollars had a Return on Investment of an entire new economy.

In 1995, MERIT published the NSFNET Final Report, in which it was stated:
"Infrastructures, for purposes such as transportation and communication, have long been vital to national welfare. They knit together a country's economy by facilitating the movement of people, products, services, and ideas, and play important roles in national security." p. 4.
The report concluded:
"Since the earliest days of the telegraph and the telephone, history tells us that the arrival of each new communications medium has been accompanied by grandiose claims of its potential benefits to society. In order to take advantage of the exciting opportunities afforded by today's technology, it is imperative that policy makers examine the development of the NSFNET and the Internet. We are still far away from a truly open, interoperable, and ubiquitous global information infrastructure accessible to all, "from everyone in every place to everyone in every other place, a system as universal and as extensive as the highway system of the country which extends from every man's door to every other man's door," in the words of Theodore Vail, president of AT&T in 1907. However, the Internet has brought us a giant step closer to realizing the promise of high-speed networking, one of the most revolutionary communications technologies ever created. As part of this phenomenon, the NSFNET backbone service provided a model for future partnerships as well as a legacy of technology for the world." p. 43.

Wednesday, April 05, 2017

Not Not Pleading That Defendant is a Content Producer Means Continued Friction of Sec. 230(c) Litigation :: Moretti v. The Hertz Corp., D. Del. 2017

Litigation is a painful friction. And an expense. And generally one wants to dispose of litigation as expeditiously as possible.

To understand today’s 47 U.S.C. s 230(c) litigation, we must go back to Civil Procedure 101. What is the difference between a motion on the pleadings, Rule 12(c), and a motion to for summary judgment, Rule 56? Friction and expense. If plaintiff files suit and alleges a claim that cannot result in a decision in plaintiff’s favor, regardless of the facts, then defendant can file a “You Got Nothing” motion for judgment on the pleadings. For example, if plaintiff sues defendant for being a raspberry cupcake, defendant can move to dismiss on the grounds that being a raspberry cupcake is not grounds for a lawsuit. Lawsuit ends before it even begins.

If, however, we are in the 9th Circuit where being a raspberry cupcake actually is a problem, then a motion to dismiss will not succeed. Defendant must defend, arguing that defendant is a blueberry cupcake, not a raspberry cupcake. To establish this, parties must engage in discovery (expense) and submit evidence (expense). Now, after discovery, if there are no relevant facts in dispute, defendant can move for summary judgment. “Plaintiff alleges that Defendant is a cupcake, but after discovery it is undisputed that Defendant is a blueberry cupcake. Therefore plaintiff’s cause of action should be dismissed.” Defendant wins again…. but after friction and expense.

Got it?

Now you are ready to understand today’s Sec. 230(c) case: Moretti v. THE HERTZ CORPORATION, Dist. Court, D. Delaware 2017.

Plaintiff sued Hertz, Dollar Thrifty, and Hotwired on the grounds that, according to the court,
“The Hertz Corporation and Dollar Thrifty Automotive Group, Inc. supplied [] misleading information about car rental prices and terms to Hotwire, and Hotwire incorporated the content into listings on its website. Plaintiff alleges that Hotwire continued to do so despite consumer complaints and Hotwire's knowledge of the information's fraudulent content. Plaintiff characterizes Hotwire as a willing and ratifying participant in this arrangement, and alleges that Hotwire "directly profit[s]" from the scheme.”
Defendant Hotwired said, “Plaintiff’s Got Nothing.” Plaintiff has alleged that Defendant Hotwired has published third party content. Pursuant to Sec. 230(c), Defendant Hotwired as an Interactive Computer Service is not liable for third party content on its website. Easy get out of litigation free case.

Before we move forward, let’s review some precedent. There is no “notice and takedown provision” to Sec. 230(c); notice to an interactive computer service that third party content is problematic does not obligate the interactive computer service to remove that content and does not give rise to a cause of action. Zeran v. American Online, Inc., 958 F. Supp. 1124, 1134-36 (E.D. Va. 1997), aff'd 129 F.3d at 333 ("Liability upon notice would defeat the dual purposes advanced by § 230 of the CDA" as it would "reinforce[] service providers' incentives to restrict speech and abstain from self-regulation"; notice-based liability "would provide third parties with a no-cost means to create the basis for future lawsuits."). Furthermore, making a profit also does not give rise to a cause of action and does not transform an interactive content service into a content producer (see caselaw involving interactive content services that made money off of hosting third party content). The only relevant allegation with regards to Defendant Hotwired is that it published third party content.

Not so fast, says the court. And this is where the tension between a motion to dismiss and motion for summary judgment grows. Even though, according to the facts as presented by the court, plaintiff did not allege that defendant Hotwired was a content provider, plaintiff also did not allege that defendant Hotwired was not (yes a double negative) a content provider. It is not on Plaintiff to anticipate every affirmative defense and plead facts sufficient in the complaint to defeat those affirmative defenses. There is no evidence that Congress wanted to convert Sec. 230(c) from an affirmative defense to a pleading requirement.

Really?? REALLY!! I mean come on! The court would rather encumber defendants with the slings and arrows of pissed off plaintiffs rather than dispose of unnecessary litigation out of the gates? We have been here over and over and over again and yet plaintiff’s attorneys seem unable to learn that interactive computer services ARE NOT LIABLE for third party content. But hey, on the one hand we could have plaintiff easily amend its complaint and add like three words that say defendant is a content provider - something the court said plaintiff indicated it could do - but the court did not require of the plaintiff in order to continue the litigation - or we can let defendants out of litigation (without prejudice) that they allegedly have no business being dragged through, wasting their time and money.

Let’s be clear. According to the Rules of Civil Procedure, Rule 8(a)(2): the complaint must plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” Defendant Hotwired gets to know why it’s being sued. According to the facts as presented by the court, the content in question came from third party defendants; the only relevant factual allegation is that defendant Hotwired hosted the third party content. And from that, the only way Defendant can respond is that Defendant is an Interactive Computer Service protected under Sec. 230(c). Compare Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (Mere speculation is insufficient to overcome a motion to dismiss).

The court weasels:
“The Court recognizes the friction between its holding and Congress's stated goals in enacting Section 230. The Court is sensitive to the expense of litigation and the public policy arguments in favor of requiring plaintiffs to plead around immunities from suit like Section 230.“
Nevertheless, “Hotwire has not ‘clearly established that no material issue of fact remains to be resolved.’” Yeah, establishing that there are no disputed facts is the summary judgment standard. The motion to dismiss standard is that “Plaintiff’s Got Nothing.” And when on the pleadings all that Plaintiff has alleged is that a third party supplied content and defendant has that content on its website, then Plaintiff has nothing and the court should not be putting defendants through litigation that cannot lead anywhere (or make plaintiff amend its complaint).

Unless, off course, it’s just the case that the judge feels that Congress through Sec. 230(c) inappropriately shielded defendants and that Interactive Computer Services really should face responsibility for publishing third party content.

Or did I get that wrong?

Tuesday, March 28, 2017

πŸ“½ IP Address Operations - APRICOT 2017

IP Address Operations: IP Addresses in 2016, Geoff Huston; Lessons from the IPv4 Transfer Market, Mike Burns

Friday, March 24, 2017

🚲 Capricious Links 🐢 FB and Surveillance ~ Senate Broadband Privacy Vote ~ Draft Sec. 230 Bill ~ Internet Filters Dont Work ~

, Facebook and Instagram Publicly Prohibit Surveillance of Users Following Coalition Demands, ACLU ~ Today, Facebook publicly announced updates to Facebook and Instagram platform policies to clearly prohibit the use of company data for surveillance. These updates respond to demands from a coalition that includes the ACLU of California, the Center for Media Justice, and Color of Change.  https://www.aclunc.org/news/facebook-and-instagram-publicly-prohibit-surveillance-users-following-coalition-demands


, Facebook U.S. Public Policy, Facebook ~ Today we are adding language to our Facebook and Instagram platform policies to more clearly explain that developers cannot "use data obtained from us to provide tools that are used for surveillance."  https://www.facebook.com/uspublicpolicy/posts/1617594498258356


Elizabeth Dwoskin, Facebook says police can't use its data for 'surveillance', WAPO ~ Facebook is cutting police departments off from a vast trove of data that has been increasingly used to monitor protesters and activists. https://www.washingtonpost.com/news/the-switch/wp/2017/03/13/facebook-says-police-cant-use-its-data-for-surveillance/?utm_term=.dd2dad929ae0


Brooke Seipel, The draft bill is called the "No Immunity for Sex Traffickers Online Act of 2017." It's authored by Rep. Ann Wagner (R-Mo.). The bill would amend Section 230 in two main ways:, The Hill ~ President Trump on Friday took credit for the creation of 20,000 jobs by telecom company Charter Communications, a deal that was originally made in 2015, during the Obama administration. http://thehill.com/blogs/blog-briefing-room/news/325659-trump-takes-credit-for-companys-jobs-pledge-that-was-made


Robert Cannon, Is Call Forwarding an "Information Service" and Why It Matters for FTC Jurisdiction, CircleID ~ Time to brush the dust off your Computer II notebooks. Are voicemail, electronic fax, and call forwarding enhanced services or telecom services? http://www.circleid.com/posts/20170721_call_forwarding_information_service_matters_for_ftc_jurisdiction/


Jon Brodkin, How ISPs can sell your Web history—and how to stop them, Ars Technica ~ The Senate vote was 50-48, with every Republican senator voting to kill privacy rules and every Democratic senator voting to preserve them. https://arstechnica.com/information-technology/2017/03/how-isps-can-sell-your-web-history-and-how-to-stop-them/


, Senate Acts on Broadband Privacy, NTCA ~ Today the Senate passed the Congressional Review Act resolution to overturn the FCC's recently adopted broadband privacy rules for Internet service providers. Throughout the development of the FCC's broadband privacy rules, NTCA has championed consumer-centric principles of notice, choice and security. At the same time, NTCA has cautioned against regulations that would treat ISPs differently than other firms in the broadband market – and frankly, some of them have far more consumer information and metrics and should be of significantly more concern than ISP operations. http://www.ntca.org/ceoblog/senate-acts-on-broadband-privacy/


, ACA Applauds Senate Passage Of Flake Resolution Voiding FCC's Broadband Privacy Rules, ACA ~ ACA is very pleased the Senate voted to use the Congressional Review Act (CRA) to nullify the FCC's broadband privacy regulations. ACA thanks Sen. Jeff Flake (R-Ariz.) and his many Senate co-sponsors of the CRA resolution for their leadership role in eliminating regulations that as applied to smaller broadband providers would impose unwarranted and burdensome regulations, harmful both to small businesses and their customers. http://www.americancable.org/node/6056


Shiva Stella, Senate Leaves Consumers Vulnerable in Rush to Destroy Americans' Online Privacy, PK ~ With less than 10 hours of 'consideration,' the Senate took the first step to eliminating a rule that put consumers in control of their data online. This vote is a clear sign that American interests  https://www.publicknowledge.org/press-release/senate-leaves-consumers-vulnerable-in-rush-to-destroy-americans-online-privacy#When:17:09:00Z


, Google and Symantec clash on website security checks, BBC ~ Google alleges that Symantec has not done enough to ensure that these basic and extended certificates are being issued correctly. It claims to have evidence that over the past few years 30,000 certificates are suspect. http://www.bbc.com/news/technology-39365315


, Doubts about whether internet filters protect teenagers online, U Oxford ~ The research paper, published in The Journal of Pediatrics, says the effectiveness of internet filters is 'dubious' and suggests that resources would be better spent trying to develop the resilience of teenagers to such experiences. http://www.ox.ac.uk/news/2017-03-14-doubts-about-whether-internet-filters-protect-teenagers-online


, Google Fiber Community Impact Report, Google Fiber ~ From the earliest days of Google Fiber through today, we've seen the transformational power of local partnerships and how access to super fast Internet - and all the tools that come with it - can drive progress in communities.  https://fiber.googleblog.com/2017/03/google-fiber-community-impact-report.html


Karl Bode, Our $300 Million Broadband Map Is Stuck in Useless Limbo, DSLReports ~ In February of 2011 the government released our first ever broadband map (available here) after spending roughly $300 million on the project. Our readers by and large were unimpressed at the time, noting the map didn't list prices, and often reported non-existent competitors and unavailable speeds in many markets.  http://www.dslreports.com/shownews/The-FCCs-300-Million-Broadband-Map-Is-Stuck-in-Useless-Limbo-139208


Eric Goldman, WARNING: Draft "No Immunity for Sex Traffickers Online Act" Bill Poses Major Threat to Section 230, Tech & Marketing Law Blog ~ The draft bill is called the "No Immunity for Sex Traffickers Online Act of 2017." It's authored by Rep. Ann Wagner (R-Mo.). The bill would amend Section 230 in two main ways: http://blog.ericgoldman.org/archives/2017/03/warning-draft-no-immunity-for-sex-traffickers-online-act-bill-poses-major-threat-to-section-230.htm


Cyrus Farivar, Feds: We're pulling data from 100 phones seized during Trump inauguration, Ars Technica ~ In new filings, prosecutors told a court in Washington, DC that within the coming weeks, they expect to extract all data from the seized cellphones of more than 100 allegedly violent protesters arrested during the inauguration of President Donald Trump.  https://arstechnica.com/tech-policy/2017/03/feds-were-pulling-data-from-100-phones-seized-during-trump-inauguration/


, Broadband Overtakes Cable/Satellite as Leading Conduit for Video, USTelecom ~ More than two-thirds (68 percent) of consumers subscribe to a free or paid streaming video service compared to 67 percent for pay-TV service providers, according to a "The Changing Landscape for Video and Content," a new study by the Consumer Technology Association (link is external) (CTA). http://www.ustelecom.org/blog/broadband-overtakes-cablesatellite-leading-conduit-video



πŸ“½ Navigating the IPv4 Transfer Market - APRICOT 2017

Thursday, March 23, 2017

πŸ“½ Peering Forum - IX Track - PeeringDB Update - Apricot 2017

Peering Forum - IX Track with PeeringDB 2.0 Update (video below is multiple presentations - link is directly to the PeeringDB presentation in the timeline)

Tuesday, March 21, 2017

πŸ“½ Geoff Huston - The Death of Transit and Beyond, APRICOT 2017

The Death of Transit and Beyond
(panel discussion of several presentations - link above is directly to Geoff's presentation in the timeline - video below is all four presentations and Geoff is the fourth)

Monday, March 20, 2017

In Which I Get Another Excuse to Babble About the "Enhanced Service" / "Telecom Service" Dichotomy :: FTC v. American eVoice

Time to brush the dust off your Computer II notebooks.  Are voicemail, electronic fax, and call forwarding enhanced services or telecom services?

Today's case: FTC v. American eVoice, Ltd, et al, CV-13-03-M-DLC (DC Montana Mar. 14, 2017). See also Stipulated Permanent Injunction.

The FTC brought an action against Defendants claiming that they were engaged in cramming, adding unwanted voicemail, electronic fax, and call forwarding services to consumers bills to the tune of $70 million. Slip at 3. The FTC concluded that this was a violation of Sec. 5 of the FTC Act, which prohibits "unfair or deceptive acts or practices in or affecting commerce." Slip at 3.

Defendants filed a motion to dismiss, arguing that they are common carriers and therefore exempt from FTC jurisdiction. This argument had been successful recently. In FTC v. ATT Mobility (9th Cir. Aug. 2016), the FTC had brought an action against ATT Mobility for data throttling (before the FCC's Open Internet order declaring Internet access service a telecommunications service). The 9th Circuit found that ATT Mobility had the status of a common carrier, therefore the FTC lacked jurisdiction over ATT Mobility. Specifically, Sec. 5 states that the FTC lacks jurisdiction over "common carriers subject to the Acts to regulate commerce."  The term "common carrier" is not defined in Sec. 5. The 9th Circuit conducted an extensive review, concluding that the language applied generally to firms that have the status of being a common carrier, and not specifically only to actions that constitute the provision of common carriage.  In other words, according to the holding of the 9th Circuit, the FTC lacks jurisdiction over ATT Mobility even if ATT Mobility is selling hot dogs out of a push cart because ATT Mobility has the status of common carriage for some other part of its business.

So are Defendants in the case at hand "common carriers" or not?

The Court cites to Computer II authority, for which it gets my thumbs up. But of course Computer II has been superseded by the Telecommunications Act of 1996 which codified definitions for an "information service" (a.k.a. "enhanced services") and a "telecom service." An "Information Service" is
the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing... - 47 U.S.C. § 153(20)
By contrast, a "telecom service"
means the offering of telecommunications for a fee directly to the public 47 U.S.C. § 153(53)
And of course, "telecommunications"
means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received. 47 U.S.C. § 153(50)
As the court states, telecom service is essentially a pipeline. It is the transmission layer of the communications service. It pretty much is someone saying "hi grandma" into a telephone network and "hi grandma" comes out the other end.

Anything more than that is an "information service." This is a bright line test. If "hi grandma" is spoken into the network and "Bonjour Grand-mère" comes out the other end of the network, you gots yourself "a change in the form or content of the information" sent.

The FCC and the courts have been deciphering the distinction between "information services" and "telecommunications services" for more than half a century. There is a bit of precedent here. What we know, according to the court, is that defendants offered "voicemail, electronic fax, and call forwarding." Have previous courts and the FCC passed on whether these are "information services"? Yes they have.

Voicemail Information Service CPE Order 2001 ¶ 2; FWD MOOStevens Report, ¶ 73; BOC Petition Order 13770-774, App. A; Computer II Final Decision, ¶ 98; In re Southwestern Bell CEI Plan for the Provision of Voice Messaging Services, DA 88-1469, Memorandum Opinion and Order, 3 FCC Rcd. 6912, 65 Rad. Reg. 2d (PF) 527,  1 (September 29, 1988); Petition USTelecom2013 ¶ 20; Computer III Further NPRM 1998 ¶ 1
Electronic Fax Information Service (actually, the court does not describe what 'electronic fax' is so I am not 100% confident but....) :: Computer III Further NPRM 1998 ¶ 1; Review of Customer Premises Equipment and Enhanced Services Unbundling Rules in the Interexchange, Exchange Access and Local Exchange Markets, CC Docket No. 98-183, Further Notice of Proposed Rulemaking, para 1, n. 20 (October 9, 1998); MOO, Bell Operating Companies Joint Petition for Waiver of Computer II Rules, DA 95-36, 10 FCC Rcd 1724 n.3, 1995 FCC LEXIS 217 **2 (Jan 1995)
Call Forwarding Telecom Service Stevens Report, ¶ 73; Computer II Final Decision, ¶ 98

Whoops. That did not go as planned. "Call Forwarding" is a "Telecom Service"?? According to Computer II
We indicated that 'computer processing applications such as call forwarding, speed calling, directory assistance, itemized billing, traffic management studies, voice encryption, etc., may be used in conjunction with 'voice' service.'  The intent was to recognize that while POTS is a basic service, there are ancillary services [a.k.a. adjunct services] directly related to its provision that do not raise questions about the fundamental communications or data processing nature of a given service. Accordingly, we are not here foreclosing telephone companies from providing to consumers optional services to facilitate their use of traditional telephone service. - Computer II Final Decision, ¶ 98. 
Ah! So now we have to introduce one more concept: adjunct services. According to the FCC, adjunct services are services that may involve something that looks like an information service but facilitates the operation of the telecommunications service. Adjunct services take on the regulatory classification of the facilitated telecom service. Here is a simple example. If you call directory assistance to get a telephone number so that you can make a call, that's an adjunct service and therefore a telecom service. If however you call directory assistance with a reverse lookup, querying with a telephone number and asking for the name, that is an information service because that reverse lookup does not facilitate the operation of the telecom service (you already have the telephone number; getting the name doesn't help set up the call).

The policy behind this exception was that telecom services like ATT and the Baby Bells were prohibited from providing information services pursuant to the 1956 Consent Decree. The FCC wanted ATT to be able to offer services that facilitated operation of the telecommunications service - things like directory assistance, call forwarding, speed dialing, and caller ID. So the FCC classified these very telephone-like things as "adjunct-to-basic" services. The Telecommunications Act codified this as the Telecom Management Exception.

But an adjunct service must be adjunct to something. An adjunct service that is adjunct to nothing - this has no meaning. If ATT offers call forwarding, then this 'enhancement' facilitates the use of ATT's telecom service and therefore takes on the regulatory classification of ATT's telecom service (in other words, the "information service prohibition" would not have blocked ATT Mobility from offering this service). However, a company that just offers call forwarding but does not also offer a telecom service wasn't prohibited from offering information service in the first place and cannot offer an adjunct service to a non-existent telecom service. Thus, a stand-alone enhancement like call forwarding falls within the "information service" bucket and not the "adjunct service therefore telecom service" bucket. 

According to the court, "there is no evidence before the Court that the corporate Defendants operated a transmission pipeline" [a.k.a. telecom service]. Slip at 10. Unlike ATT Mobility which had the status of "common carrier" because some part of that company offers common carrier service (even though other parts of the company do not), no part of Defendants companies were found to offer "telecom service," thus Defendants do not fall within the FTC exception to jurisdiction over common carriers.

Oh, by the way, the Court noted a further problem with Defendants' claim to be "common carriers." According to the Court, they had not registered with the FCC as common carriers; they had not named an agent for service of process as a common carrier; they made no showing that they complied with common carrier obligations like paying into the universal fund. Slip at 11. Adding to the jurisprudence of the Duck Test, the Court concluded that these Defendants don't quack like a duck.

Defendants' Motion to Dismiss on the grounds that Defendants are common carriers outside the jurisdiction of the FTC dismissed.

πŸ“½ Peering 101 - Walt Wollny, Hurricane Electric, Apricot 2017

Wednesday, March 15, 2017

🐢 Arbitrary Links 🚴🏿 Privacy Rules :: Ethiopia Free to Spy :: Broadband Hearing Next Week :: No IPv4 for You :: Digital Geneva Convention

, GOP takes aim at internet privacy rules, The Hill 3/15/17 (In recent days, lawmakers in both the House and Senate have offered legislation to roll back the Obama-era measures, with bills from Sen. Jeff Flake (R-Ariz.) and Rep. Marsha Blackburn (R-Tenn.), the chairwoman of the House Commerce subpanel on communication and technology.) http://thehill.com/policy/technology/323441-week-ahead-gop-takes-aim-internet-privacy-rules


JON BRODKIN , Advertisers look forward to buying your Web browsing history from ISPs, Ars Technica 3/15/17 (Ad groups thank Republican lawmakers for move to kill ISP privacy rules.) https://arstechnica.com/tech-policy/2017/03/ad-industry-lobbyists-celebrate-impending-death-of-online-privacy-rules/


, Talking Rural Infrastructure with the White House, NCTA 3/13/17 (Today, Mike Romano and I joined our rural partners from what has become the Rebuild Rural Coalition for a visit to the White House to meet with the special assistant to the president for Infrastructure as well as the special assistant to the president for Agriculture. Leadership from the Farm Credit Council, the American Farm Bureau Federation, the National Water Association, the National Rural Electric Cooperative Association, the National Council of Farmer Cooperatives all sat around the table with us, along with leadership from Capitol Hill and USDA for a small focused meeting on rural infrastracture.) http://www.ntca.org/ceoblog/talking-rural-infrastructure-with-the-white-house/


Eric Goldman, Constitution Protects Publication of Politicians' Home Address/Phone Number–Publius v. Boyer-Vine, Tech & Marketing Law Blog 3/14/17 () http://blog.ericgoldman.org/archives/2017/03/constitution-protects-publication-of-politicians-home-addressphone-number-publius-v-boyer-vine.htm


Geoff Huston, The Internet's Gilded Age, Circle ID 3/14/17 (This is no longer just a conversation about carriage and communications. It is probably not even a conversation about carriage and communications at all. The changing face of the Internet is no longer a matter of public communications, but a matter of public services. And with this observation, we are back to a more basic theme. The essential topic of the conversation is how to strike a sustainable balance between a rapacious private sector that has amassed overarching control of the digital service and content space, and the needs of the larger society in which we all would like some equity of opportunity to thrive and benefit from the outcomes of this new digital age.) http://www.circleid.com/posts/20170311_the_internet_gilded_age/


, Ethiopia is Free to Spy on Americans in Their Own Homes, EFF 3/14/17 () https://www.eff.org/deeplinks/2017/03/dc-circuit-court-issues-dangerous-decision-cybersecurity-ethiopia-free-spy


Andrew Blake, Senator Seeks Answers From Toy Maker Following 'CloudPets' Teddy Bear Breach, Senate 3/13/17 (Sen. Bill Nelson, Florida Democrat, asked Spiral Toys' top executive on Tuesday to provide specific details about the company's security practices after it was reported that hackers repeatedly gained access to databases containing sensitive customer information including millions of personalized audio recordings meant for children.) https://www.commerce.senate.gov/public/index.cfm/pressreleases?ContentRecord_id=11FC8F0A-7493-4F09-8AC7-3A1D92E5B799


, IP addresses are getting an upgrade, Verizon 3/14/17 (On June 30, 2017, Verizon will stop issuing new Public Static IPv4 addresses due to a shortage of available addresses.) https://email.vzwshop.com/pub/sf/FormLink?_ri_=X0Gzc2X=YQpglLjHJlTQGrKE40mGHknGjiMzcpzazb6YGYzcBzcqNG9T4za5Yzehza5afUqzbGzcbCnU1KVXMtX=YQpglLjHJlTQGtRr8uTuFp1pXhE2sDNUzbXTqIdCgWBMJSsRRNCzdrFGUumLp9Fzchzc


, Measurement Lab Launches New Global Data Visualization Tools, MLABs 3/13/17 () http://www.measurementlab.net/blog/new-dataviz-site/


Kieren McCarthy, Oracle gives FCC a great big sloppy kiss: You're doing a great job axing net neutrality, privacy, Register 3/15/17 (The only logical explanation is that the letter is another indicator of the weird new praise-lobbying that is becoming increasingly common in the early days of Trumpism.) https://www.theregister.co.uk/2017/03/14/oracle_fcc_net_neutrality/


Eric Gardner, NY AG Fights Removal of Lawsuit Alleging ISP Throttled Netflix, Hollywood Report 3/15/17 (Charter Communications contends that federal law including net neutrality regulations preempt state claims made over promised Internet speed and access to content.) http://www.hollywoodreporter.com/thr-esq/ny-attorney-general-fights-removal-lawsuit-alleging-isp-throttled-netflix-985982


, HEARING: #SubCommTech to Examine Ways to Eliminate Barriers to Broadband Infrastructure NEXT WEEK, House Commerce 3/15/17 (The Communications and Technology Subcommittee, chaired by Rep. Marsha Blackburn (R-TN), today announced a hearing for Tuesday, March 21, 2017, at 10 a.m. in room 2322 of the Rayburn House Office Building. The hearing is entitled, "Broadband: Deploying America's 21st Century Infrastructure.") https://energycommerce.house.gov/news-center/press-releases/hearing-subcommtech-examine-ways-eliminate-barriers-broadband


, Our Latest Update on Safety, Twitter 3/13/17 () https://blog.twitter.com/2017/our-latest-update-on-safety


, The need for a Digital Geneva Convention, Microsoft 3/13/17 (The past year has witnessed not just the growth of cybercrime, but a proliferation in cyberattacks that is both new and disconcerting.  This has included not only cyber-attacks mounted for financial gain, but new nation-state attacks as well.  As engineers and other employees across the tech sector meet in San Francisco, we need to ask ourselves what our response should be.) https://blogs.microsoft.com/on-the-issues/2017/02/14/need-digital-geneva-convention/#sm.00000d5ador5ejdz8zmdyvszjp8xu


, Netflix ISP Speed Index for January 2017, Netflix 3/13/17 (There was no major movement in the US index in January.) https://media.netflix.com/en/company-blog/netflix-isp-speed-index-for-january-2017


, Perspective on the Electric Lightwave Acquisition, Zayo 3/13/17 (This week, Zayo closed the previously announced acquisition of Electric Lightwave, a Vancouver, Washington-based business with unique and complementary fiber assets. The transaction solidifies Zayo's position as the leading independent communications infrastructure provider with broad geographic reach throughout North America and Western Europe.) http://www.zayo.com/perspective-electric-lightwave-acquisition/



Tuesday, March 07, 2017

🐢 Arbitrary Links :: Bakers Dozen :: New Age of Politics and Media :: Trump Meets Pai :: Eds on Net Neutrality :: Really? AOL? ::

FCC RELEASES FORM 477 DATA ON FIXED BROADBAND DEPLOYMENT AS OF JUNE 30, 2016, FCC 3/3/17 (WCB released data on fixed broadband deployment as of June 30, 2016.  These data were collected through FCC Form 477 and are available on the Commission's Broadband Deployment Data ? FCC Form 477 webpage.) https://apps.fcc.gov/edocs_public/attachmatch/DA-17-219A1.pdf


Bakers Dozen , Dyn 2/15/17 (this blog provides a year-end review of how the Internet providers at the top of our Internet Intelligence – Transit global rankings fared over the previous year.) http://dyn.com/blog/a-bakers-dozen-2016-edition/


Jamie Williams, EFF to Court: Forcing Someone to Unlock and Decrypt Their Phone Violates the Constitution, EFF 3/6/17 () https://www.eff.org/deeplinks/2017/03/eff-court-forcing-someone-unlock-and-decrypt-their-phone-violates-constitution


HARPER NEIDIG, New fight erupts over internet privacy, The Hill 3/6/17 (The FCC under new Republican Chairman Ajit Pai on Wednesday moved to block a rule requiring internet service providers to take stronger steps to protect customers' data) http://thehill.com/policy/technology/322324-new-fight-erupts-over-internet-privacy


Lee Raine, The New Age of Politics and Media, Pew 2/27/17 () http://www.pewinternet.org/2017/02/27/the-new-age-of-politics-and-media/


Richard Salgado, Resounding support for updating electronic privacy laws, CISCO 3/6/17 (The Email Privacy Act updates the Electronic Communications Privacy Act (ECPA) to require the government to obtain a warrant before it can compel companies like Google to disclose the content of users' communications. ) https://blog.google/topics/public-policy/resounding-support-updating-electronic-privacy-laws/


HARPER NEIDIG AND ALI BRELAND, Trump meets FCC chief, The Hill 3/6/17 () http://thehill.com/policy/technology/322454-trump-to-meet-with-fcc-chairman


, SMALL BUSINESS EXEMPTION FROM OPEN INTERNET ENHANCED TRANSPARENCY REQUIREMENTS.   The Commission adopts an Order granting a five-year waiver to broadband Internet access service providers with 250,000 or fewer broadband connections from the enhanced reporting requirements adopted in the 2015 Title II Order. (Dkt No.  14-28 ). Action by:  the Commission. Adopted:  02/23/2017 by ORDER. (FCC No. 17-17).  CGB, FCC 3/3/17 () https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-17A1.pdf


ALI BRELAND AND HARPER NEIDIG, Week ahead: New FCC chair heads before Congress, The Hill 3/6/17 () http://thehill.com/policy/technology/322299-technology-issuewatch-newsletter


, Letter to the FCC supporting network neutrality, Battle for the Net 3/6/17 (We, the undersigned organizations, representing a diverse group of consumer, media, technology, library, arts, civil liberties, and civil rights advocates and content creators, urge you and your colleagues to oppose legislation and regulatory actions that would threaten net neutrality and roll back the important protections put in place by the FCC in 2015, and to continue to enforce the Open Internet Order as it stands.) https://www.battleforthenet.com/letter2017/


US SENATOR JOHN THUNE, Op-ed: Protect the Open Internet with a bipartisan law, Ars Technica 3/6/17 () https://arstechnica.com/tech-policy/2017/03/op-ed-protect-the-open-internet-with-a-bipartisan-law/


US SENATOR CHUCK SCHUMER , Op-ed: The Internet belongs to the people, not powerful corporate interests, Ars Technica 3/6/17 () https://arstechnica.com/tech-policy/2017/03/op-ed-the-internet-belongs-to-the-people-not-powerful-corporate-interests/


Goldman, Eric, Understanding the Consumer Review Fairness Act of 2016, SSRN Feb-17 () https://ssrn.com/abstract=2922242


JON BRODKIN , Report: Sprint "betting big on Trump," could merge with T-Mobile or Comcast, Ars Technica 3/6/17 () https://arstechnica.com/tech-policy/2017/03/report-sprint-betting-big-on-trump-could-merge-with-t-mobile-or-comcast/


JEREMY GILLULA AND KERRY SHEEHAN, NY State AG's Lawsuit Against ISP Shows Why We Need Net Neutrality Protections, EFF 3/6/17 () https://www.eff.org/deeplinks/2017/03/ny-state-ags-lawsuit-against-isp-shows-why-we-need-strong-net-neutrality


, Letter Petitioning reconsideration of Lifeline Broadand Provider decision, Coalition 2/23/17 (we call on you to reverse the Wireline Competition Bureau's Order on Reconsideration1 that has undermined Lifeline's important goal of bringing affordable communications services to poor people, and to set aside any further efforts to erode Lifeline's promise) https://ecfsapi.fcc.gov/file/10223875430616/L-LLCoalition-FCC-FINAL%20(5).pdf


, FCC RFC Concerning Lifeline Broadband Providers, FCC 3/2/17 (Comments Due March 16) http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0302/DA-17-213A1.pdf


 HARPER NEIDIG, FCC solicits comments on broadband subsidy program, The Hill 3/3/17 (A coalition of advocacy groups — including the NAACP, Free Press and the American Library Association — filed a petition last month asking the agency to reconsider the move, and on Thursday the FCC began soliciting comments from the public) http://thehill.com/policy/technology/322230-fcc-solicits-comments-on-broadband-subsidy-program


JOE MULLIN , US will suspend fast processing for H-1B visas, Ars Technica 3/6/17 () https://arstechnica.com/tech-policy/2017/03/us-will-suspend-fast-processing-for-h-1b-visas/


DAN GOODIN, Mike Pence used an AOL e-mail account for state business and it got hacked, Ars Technica 3/6/17 () https://arstechnica.com/security/2017/03/mike-pence-used-an-aol-e-mail-account-for-state-business-and-it-got-hacked/


Bruce Schneier, Uber Uses Ubiquitous Surveillance to Identify and Block Regulators, Schneier 3/6/17 () https://www.schneier.com/blog/archives/2017/03/uber_uses_ubiqu.html



Thursday, March 02, 2017

🚲 Arbitrary and Capricious Links 🐢

FCC TAKES STEP TOWARDS ENSURING CONSUMERS HAVE UNIFORM ONLINE PRIVACY PROTECTIONS.  News Release. News Media Contact: Will Wiquist at (202) 418-0509, email: Will.Wiquist@fcc.gov  WCB  https://apps.fcc.gov/edocs_public/attachmatch/DOC-343703A1.docx




PROTECTING THE PRIVACY OF CUSTOMERS OF BROADBAND AND OTHER TELECOMMUNICATIONS SERVICES/FCC GRANTS TEMPORARY STAY OF DATA SECURITY REGULATION FROM BROADBAND PRIVACY ORDER.   Grants the Stay Petition in part, and stays on an interim basis one aspect of the requirements adopted in the 2016 Privacy Order related to data security. (Dkt No.  16-106 ). Action by:  the Commission. Adopted:  03/01/2017 by ORDER. (FCC No. 17-19).  WCB  https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-19A1.docx












FCC VOTES TO PROTECT SMALL BUSINESSES FROM NEEDLESS REGULATION.   Service Providers with 250,000 Broadband Connections Are Relieved from Excessive Reporting Obligations.  News Release. (Dkt No 14-28 ). Adopted:  02/23/2017. News Media Contact: Mark Wigfield at (202) 418-0253, email: Mark.Wigfield@fcc.gov  CGB  https://apps.fcc.gov/edocs_public/attachmatch/DOC-343609A1.docx








STATEMENT ON NEED FOR COMPREHENSIVE AND UNIFORM FRAMEWORK TO PROTECT AMERICANS' ONLINE PRIVACY.  STMT. News Media Contact: Mark Wigfield at (202) 418-0253, email: Mark.Wigfield@fcc.gov  OMR  https://apps.fcc.gov/edocs_public/attachmatch/DOC-343623A1.docx


Released:  02/22/2017.  INTERCONNECTED VOIP NUMBERING AUTHORIZATION APPLICATION FILED BY VOIPSTREET, INC. DBA VOIP INNOVATIONS PURSUANT TO SECTION 52.15(G)(3). (DA No.  17-189). (Dkt No 16-365 )  STREAMLINED PLEADING CYCLE ESTABLISHED. Comments Due:  03/09/2017.  WCB . Contact:  Margoux Brown at (202) 418-1584 or Jean Ann Collins at (202) 418-2792 https://apps.fcc.gov/edocs_public/attachmatch/DA-17-189A1.docx


Committee Approves H.R. 1224, the NIST Cybersecurity Framework, Assessment, and Auditing Act of 2017 https://science.house.gov/news/press-releases/committee-approves-hr-1224-nist-cybersecurity-framework-assessment-and-auditing

New FCC Chairman Begins Attacks on Internet Privacy


Section 230 Protects Grindr From Harrassed User's Claims–Herrick v. Grindr


ICANN Drifting Toward Online Content Regulation, Says Law Professor


Overnight Tech: FCC chief rails against net neutrality | Websites go down after Amazon cloud trouble | Uber CEO caught arguing with driver | Xbox launches subscription service


Dem FCC commish vows to fight for net neutrality at rally


FCC chair doesn't expect to review AT&T-Time Warner merger


The Open Internet marks a turning point, Cable Tech Talk


Cisco Applauds Unanimous House Vote Passing Email Privacy Act


The IoT Is the Next Massive, Disruptive Wave


We're Serious About Rural Broadband Infrastructure, NCTA


Broadband is the infrastructure challenge of the 21st Century