Net Neutrality and Internet Surveillance

–An Update on Federal Actions and Activities–

Bob BocherTechnology Consultant,

WI Dept of Public Instruction, State Division for Libraries

608-266-2127, robert.bocher@wisconsin.gov

dpi.wi.gov/pld/ppt/netneutral.ppt

2007 WLA Conference — Green Bay

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Topics to Cover

1. Internet Neutrality a) Definition and background b) Internet, telecom and FCC regulationsc) Who supports what; impact on libraries

2. Internet Surveillancea) State statutory protectionsb) Federal DOJ activitiesc) NSA, NSL and PATRIOT ACT

3. Other FCC Activities Impacting Libraries

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Net Neutrality – A Definition

Net Neutrality:

Accessing any content or using any service or application via the Internet is done in a neutral fashion. That is, there is no network configuration, policy, or practice, outside of end user control, that discriminates against certain content, services, or applications.

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Net Neutrality - Background

Neutrality issue predates the Internet Based on common carriage

Telecom: No one is refused service; all calls are connected regardless of location or content

Major legal difference between: “Telecommunication service” (Title II)

Strong common carrier language

“Information service” (Title I)

Weak language

Internet is an information service

47 U.S.C. §202: It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, or services by any means or device, or to subject any person to any unreasonable prejudice or disadvantage.

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The Internet and FCC Regulations

1990s: Most consumers had dial-up More than 7,500 dial-up ISPs

ISPs used telecom provider circuits

Most telecom/cable companies were not ISPs

2000s: More consumers moving to broadband More telecom/cable companies providing BB

Eroding line between telecom providers and ISPs

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The Internet and FCC Regulations

2000s: Broadband debate and neutrality issue U.S. 15th or 20th in residential BB

President’s BB initiative: Connect all by 2007

FCC encourages more BB access More access based on more competition

More competition based on less regulation

2002: FCC says cable ISPs not subject to strong, common carrier regulation

Provide “information service”

“This country needs a national goal for the spread of broadband technology. We ought to have universal, affordable access for broadband technology by the year 2007. —President Bush, 3-04

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The Internet and FCC Regulations

2005: FCC deregulates broadband Treat telecom and cable ISPs the same

Removes common carrier language; no strong legal protection for maintaining “neutral” Internet

Telecom circuit is part of unregulated Internet access

Issues “Broadband Access to the Internet” principles

2007: FCC issues “Broadband Notice of Inquiry” ALA filed comments in June

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Net Neutrality Statement

The Commission has decided to reclassify broadband transmission facilities as Title I “information services” rather than Title II “telecommunications services.” To the uninitiated this sounds like semantics. But it has real consequences. That’s because the nondiscrimination obligations that attach to telecommunications traffic and which were vital to keeping the Internet open in the dial-up era no longer apply to broadband services.

We need a watchful eye to ensure that network providers do not become Internet gatekeepers, with the ability to dictate who can use the Internet and for what purpose.

— FCC Commissioner Michael Copps, Sept 2005

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Net Neutrality - Who Supports What?

Neutrality is generally supported by: Consumer organizations Organizations supporting First Amendment Content providers Education and library communities

Neutrality is generally opposed by: Telecom/cable companies Internet service providers Organizations that oppose gov’t regulation

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Net Neutrality Supporters

End users lose control Control moves from network edge to core

Stifle innovation and new services/applications

Concerns with evolving vertical market (triple play)—where telecom/cable providers control:

The underlying circuit Actual Internet access itself An increasing share of content

Little competition for voice/video/data services

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Net Neutrality Opponents

Must be able to manage network Security, traffic management Discriminate for latency sensitive applications

Video, VoIP, hosted services —like regional ILS

Telecom/cable need return infrastructure investments

Cannot control legislative outcome

No cases of abuse or discrimination??

Market is better mechanism to address issue vs. gov’t intervention

"To date we are unaware of any market failure or demonstrated consumer harm from conduct by broadband providers." –FTC report, June 2007

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Net Neutrality – Impact on Libraries

Libraries are access providers

Libraries are content providers

Libraries don’t have deep pockets

Could make ISP selection difficult

Libraries concerned with Equity of access and digital divide First Amendment issues and diversity of opinion

ALA implores the FCC to ensure that producers and consumers of information are able to access and provide services on the Internet free from discriminatory practices.

– Loriene Roy, ALA President, Sept 2007

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Net Neutrality – What’s Down the Road?

Internet Freedom Preservation Act (S. 215) Includes common carrier protections

AT&T commitment letter

DTV transition and FCC’s 700 MHz auction

Position of large content/application providers

Impact of 2008 elections

“AT&T commits that it will maintain a neutral network and neutral routing in its broadband Internet service.” --Dec 28, 2006

700 MHz auction parallels Net Neutrality debate. Google wants FCC to reserve “public” space, telecoms want “open” auction with few restrictions.

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Topics to Cover

Internet Neutrality 1) Definition and background 2) Internet, telecom and FCC regulations3) Who supports what; impact on libraries

Internet Surveillance1) State statutory protections2) Federal DOJ activities3) NSA and PATIROT ACT

Other FCC Activities Impacting Libraries

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Library Privacy Protections

State statutes(43.30)

ALA policy

Library policies

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WI Library Privacy Law – 43.30

WI Library privacy law (43.30)covers the following:

1. Any library supported by public funds

2. Any records indicating the identity of a library user

3. Any use of a library’s materials or other resources or services (emphasis added)

name, telephone no. street address, email, login, surveillance tapes (bill pending to exempt tapes)

circulation records, Internet use, reference questions, etc.

public libraries, public K-12 schools, UW and WTCS libraries

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80 Years of Wiretaps: Key Supreme Court and Congressional Actions

1928: SC approves phone wiretaps in Olmstead decision

1967: SC reverses Olmstead in Katz decision 1968: Omnibus Crime Control Act: Wiretaps require court order

1978: Foreign Intelligence Surveillance Act, FISA

1986: Electronic Communications Privacy Act, ECPA

1994: Communications Assistance for Law Enforcement Act, CALEA

2001: USA PATRIOT Act and NSA warrantless wiretap program

2007: DOJ report on FBI abuses of NSLs

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Federal Dept of Justice Activities

Feb 2005: DOJ asks FCC to extend CALEA to the Internet

ALA responds that public libraries are exempt Drive compliance higher in the network

June 2006: Federal court rules FCC has authority to extend CALEA

Feb 2007: WiscNet board: CALEA does not apply

May 2007: ISPs notify FCC of compliance

At some point in the network, some ISP must comply.

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Core Network(BadgerNet)

CRCR

CRCR

Madison

Eau Claire

Milwaukee

Green Bay

NW Lata NE Lata

SE LataSW Lata

AR

AR AR

AR

AR

AR

TechCollege

UW Campus

IFLS HQ

K-12

TechCollege

UW Campus

UW Campus

K-12

County

Library

WiscNet

WiscNet WiscNet

WiscNet

WiscNet

WiscNet

Library Library

Library

CHICAGOAt some point in the network,

some ISP must comply.

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Federal Dept of Justice Activities (cont)

DOJ taking aggressive actions Created Internet Task Force Talks with large ISPs and content providers

Subpoenaed Google, AOL, MS for search terms SAFETY Act of 2007 (H.R. 837)

AG to issue regulations on What data must be retained by ISPs How long such data must be retained

Such regulations shall, at a minimum, require retention of the name and address of the subscriber to whom an Internet Protocol address, user identification, or telephone number was assigned. —H.R. 837

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NSA Surveillance Activities

NSA warrantless searches, allowedby 2001 Presidential Order NSA can intercept all phone or Net

traffic without court authorization Bypasses FISA Court

EFF suing AT&T

ACLU suing NSA Jan ’07: DOJ says it will now go to FISA Court Oct ’07: DoD NSL

John Ashcroft, friend of libraries?

While doing my job, I learned that fiber cables from the secret room were tapping into the WorldNet circuits, including traffic from other Internet back-bone providers. All WorldNet traffic was being directed to the NSA. —Mark Klein, AT&T technician

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PATRIOT Act Reauthorization

In 2006 reauthorization, libraries gained little Pro: Can consult with attorney; no NSL for libraries in “traditional role” Con: NLS for libraries providing “electronic services”

NSL can be issued with no court oversight Only “relevant” to an investigation, no

“probable cause” In Sept., court says: Need “probable cause”

“The government is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. The court declines to do so."

—Judge Aiken, 9-07

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FBI Abuse of NSL

DOJ IG report on violations of NSL Inaccuracies in FBI’s NSL database No documentation that NSL

was “relevant” One NSL may include many requests

Protect America Act* (PL 110-55 ) Many “reasonable” clauses AG makes many decisions Gives telcos immunity RESTORE Act (H.R. 3773)

8,500

39,346

56,507

47,221

0

10,000

20,000

30,000

40,000

50,000

60,000

2000 2003 2004 2005

National Security Letters - 143,074

“Once again, the president is trying to use fear and exaggeration to intimidate Congress into granting the executive branch unchecked power that will put the rights of Americans at risk,” —Senator Feingold.

*aka: Police America Act

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PATRIOT Act and FBI Abuse of NSL

“Connecticut Four” library case – DOJ will not contest court declaring

gag order unconstitutional

EFF sues to require DOJ to release NSL info

NSL Congressional Oversight Act (H.R. 739) NLS relevant to terrorism or foreign intelligence activities Require approval of FISA Court or federal judge AG must report to Congress every six months

on NSL use

CN NSL

“We now know that there’s a lot more we don’t know than we knew before.” –R. Bocher

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Other FCC Activities That Impact Libraries

DTV transition In July ALA filed comments; FCC should partner with libraries

700 MHz spectrum auction in Jan 2008

Media ownership

Obscenity DOPA (H.R. 1120) Protecting Children in the 21st Century’ (S. 1965)

Removes DOPA social network filter requirement

Net Neutrality and

Internet Surveillance –An Update on Federal Actions and Activities–

Bob BocherTechnology Consultant, State Library Division

608-266-2127, robert.bocher@wisconsin.gov

2007 WLA Conference - October 18, 2007

Questions ??

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Home Broadband Adoption – 2007(http://www.pewinternet.org/PPF/r/217/report_display.asp)

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