Cyber Law Internet and Technology Law Firm

Saturday, May 3, 2008 was the 30^th anniversary of bulk e-mailing, popularly known as spamming. On May 3, 1978 an employee of Digital Equipment Company mass-mailed some of his colleagues an advertisement for a computer for sale over ARPANET (Advanced Research Projects Agency Network), which was a technological precursor to the Internet. Unsurprisingly, many of the recipients found the unsolicited communication method for commercial purposes unsavory. Little has changed in thirty years as to that point.

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The FBI is renewing its push for legislation that would mandate that ISPs keep records of its users’ activities for longer periods of time. Records retained would be available for review by police in cases where a search of such records is warranted. The FBI’s proposed length of time for retention of records is two year. Types of data retained could be as minimal as IP addresses assigned to each customer or more detailed information such as web sites visited, instant messaging logs, and more. The devil is in the details, of course, and the amount of time for retention time and types of data requiring retention would likely be modified if any serious legislation began to move forward.

The question: is this good policy? The Justice Department has its points. More comprehensive records would allow a case to be built more quickly against a potential terrorist or other online criminal. It’s hard to argue that a greater pool of data would not be effective in deterring crime.

On the other hand, the privacy problems are enormous. The vast majority of ISP customers will never need to be investigated by law enforcement for any reason. Regardless, these customers’ actions would be retained by ISPs for quite some time.

ISPs, already inundated with spam, additional resource loads, and a host of other problems, would also bear a much greater burden. While hardware for data storage is less and less expensive by the day, it is nonetheless an additional cost. The increased administrative burden of related to management of the data is also a strain that few ISPS will welcome.

While the FBI may get its way in part, privacy interests and the preferences of ISPs will likely lead to less than the FBI is seeking.

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Comcast is publicly proposing a “P2P Bill of Rights and Responsibilities,” which would apparently define certain obligations of peer to peer application users on the Comcast data network. Reports indicate that the “Bill of Rights” would align itself with “self–regulation” standards as to content, such as movie and television ratings, which Comcast asserts would help to curb copyright infringement. Critics say that the proposal is an attempt by Comcast to justify its reported practices of throttling or blocking traffic arising from use of P2P applications. Critics say this violates the idea of “net neutrality,” that is, the idea that once you have access to a resource, you may use it as you see fit.

Both Comcast and the critics have their strong points. Comcast is correct that P2P can be used for copyright infringement. Comcast is also correct that P2P applications tend to be resource drains. Critics are correct that Comcast ignores that P2P can also be used for perfectly lawful purposes as well. Critics are also correct that Comcast’s attempts to limit certain content and applications is a slippery slope when it comes to freedoms of speech and expression. These competing viewpoints have been well-developed over the years.

The real issue here is the “path” that Comcast is considering taking in attempting to “lawfully” limit P2P bandwidth. Comcast seems to want to use the decision in MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), as a weapon to limit bandwidth. This is a very expansive reading of the courts holding that, in a nutshell, holds that one that promotes the ease of infringing on copyrights can be sued for inducing copyright infringement committed by their users.

That Comcast would be considered to “induce” copyright infringement by simply providing Internet access to P2P applications is a very broad reading of the Grokster holing. Copyright infringement can occur in numerous ways, including FTP and simple copying of images from websites via a web browser. Comcast provides access to web browsing and file transfer applications to customers, yet those methods of copyright infringement are ignored by the proposed Bill of Rights.

This is not to say that Comcast does not have a case here. Its argument is at least colorable. The reality, though, is that Comcast’s ultimate goal is to limit excessive bandwidth drains on their network, not protect copyright infringement. The suggestion that the “P2P Bill of Rights and Responsibilities” is primarily a copyright issue, particularly given Comcast’s prior blocking of P2P applications, is simply a difficult argument to accept.

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A topic that is garnering increased interest in recent years, particularly in the age of substantial media consolidation, is the “local role” of broadcasters in servicing their communities. The FCC continues to mandate that broadcasters meet certain standards of community service, such as providing programming of interest to local audiences, playing local artists, and otherwise “being a part of the community.”

Broadcasters, who believe that market forces should dictate their local programming, are generally opposed to mandates, arguing that the bureaucracy of organizing community boards of meeting certain minimal requirements is a “feel good” ideal that may or may not lead to any true benefit to communities. Broadcasters also argue that they already meet local standards, shown by airtime donated for public service announcements and similar community efforts.

Advocates of “local standards” feel that broadcasters can easily comply with any FCC mandate, particularly given the broadcasters’ argument that such standards are already being met. Advocates also point out that broadcasters pay nothing for their broadcasting licenses, suggesting that reasonable efforts to meet local standard are not a serious burden.

Both sides have valid arguments. Broadcasters are correct that the mandates are a bit broad, particularly when only broadcasters, as opposed to cable or satellite provider, are subject to the regulations. Public interest advocates also have valid points, most notably the argument that news and cultural programming is becoming homogenized. With so many media outlets owned by large firms that want to cross-promote and otherwise create efficiencies in programming, there is little question that local coverage has taken a back seat in recent years.

While regulations on broadcasters should be strictly tailored, the FCC requirements regarding community standards are hardly a crushing burden. Indeed, broadcasters should probably be thankful that the FCC has chosen this route of regulation as opposed to taking a stricter stance on media consolidation and license renewals in media markets.

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