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Regulating and Not Regulating the Internet

May 26, 2010 by

There is increasingly heated rhetoric in DC over whether or not the government should begin to “regulate the internet.” Such language is neither accurate nor new. This language implies that the government does not currently involve itself in governing the internet — an implication which is clearly untrue given a myriad of laws like CFAA, ECPA, DMCA, and CALEA (not to mention existing regulation of consumer phone lines used for dialup and “special access” lines used for high speed interconnection). It is more fundamentally inaccurate because referring simply to “the internet” blurs important distinctions, like the difference between communications transport providers and the communications that occur over those lines.

However, there is a genuine policy debate being had over the appropriate framework for regulation by the Federal Communications Commission. In light of recent events, the FCC is considering revising the way it has viewed broadband since the mid-2000s, and Congress is considering revising the FCC’s enabling statute — the Communications Act. At stake is the overall model for government regulation of certain aspects of internet communication. In order to understand the significance of this, we have to take a step back in time.

Before 2005

In pre-American British law, there prevailed a concept of “common carriage.” Providers of transport services to the general public were required to conduct their business on equal and fair terms for all comers. The idea was that all of society benefited when these general-purpose services, which facilitated many types of other commerce and cultural activities, were accessible to all. This principle was incorporated into American law via common-law precedent and ultimately a series of public laws culminating in the Communications Act of 1934. The structure of the Act remains today, albeit with modifications and grafts. The original Act included two regulatory regimes: Title II regulated Common Carriers (telegraph and telephone, at the time), whereas Title III regulated Radio (and, ultimately, broadcast TV). By 1984, it became necessary to add Title VI for Cable (Titles IV and V have assorted administrative provisions), and in 1996 the Act was revised to focus the FCC on regulating for competition rather than assuming that some of these markets would remain monopolies. During this period, early access to the internet began to emerge via dial-up modems. In a series of decisions called the Computer Inquiries, the FCC decided that it would continue to regulate phone lines used to access the internet as common carriers, but it disclaimed direct authority over any “enhanced” services that those lines were used to connect to. The 1996 Telecommunications act called these “enhanced” services “information services”, and called the underlying telephone-based “basic” transport services “telecommunications services”. Thus the FCC both did and did not “regulate the internet” in this era.

In any event, the trifurcated nature of the Communications Act put it on a collision course with technology convergence. By the early 2000s, broadband internet access via Cable had emerged. DSL was being treated as a common carrier, but how should the FCC treat Cable-based broadband? Should it classify it as a Title II common carrier, a Title VI cable service, or something else?

Brand X and Its Progeny

This question arose during a period in which a generally deregulatory spirit prevailed at the FCC and in Congress. The 1996 Telecommunications Act contained a great deal of hopeful language about the flourishing competition that it would usher in, making unneccessary decades of overbearing regulation. At the turn of the milennium, a variety of revolutionary networking platforms seemed just around the corner. The FCC decided that it should remove as much regulation from broadband as possible, and it had to choose between two basic approaches. First, it could declare that Cable-based broadband service was essentially the same thing as DSL-based broadband service, and regulate it under Title II (aka, a “telecommunications service”). This had the advantage of being consistent with decades of precedent, but the disadvantage of introducing a new regulatory regime to a portion of the services offered by cable operators, who had never before been subject to that sort of thing (except in the 9th Circuit, but that’s another story). The 1996 Act had given the FCC the authority to “forbear” from any obligations that it deemed unnecessary due to sufficient competition, so the FCC could still “deregulate” broadband to a significant extent. The other option was to reclassify cable broadband as a Title I service (aka, an “information service”). What is Title I, you ask? Well, there’s very little in Title I of the Communications Act (take a look). It mostly contains general pronouncements of the FCC’s purpose, so classifying a service as such is a more extreme way of deregulating a service. How extreme? We will return to this.

The FCC chose this more extreme approach, announcing its decision in the 2002 Cable Modem Order. This set off a prolonged series of legal actions, pitting the deregulatory-spirited FCC against those that wanted cable to be regulated under Title II so that operators could be forced to provide “open access” to competitors who would use their last-mile infrastructure (the same way that the phone company must allow alternative long distance carriers today). This all culminated in a decision by the 9th Circuit that Title I classification was unacceptable, and a reversal of that decision by the Supreme Court in 2005. The case is commonly referred to by its shorthand, Brand X. The majority opinion essentially states that the statute is ambiguous as to whether cable broadband is a Title I “information service” or Title II “telecommunications service”, and the Court deferred to the expert-agency: the FCC. The FCC immediately followed up by reclassifying DSL-based broadband as a Title I service as well, in order to develop a, “consistent regulatory framework across platforms.” At the same time, it released a Policy Statement outlining the so-called “Four Freedoms” that nevertheless would guide FCC policy on broadband. The extent to which such a statement was binding and enforceable would be the subject of the next chapter of the debate on “regulating the internet.”

Comcast v. FCC

After Brand X and the failure of advocates to gain “open access” provisions on broadband generally, much of the energy in the space focused to a fallback position: at the very least, they argued, the FCC should enforce its Policy Statement (aka, the “Four Freedoms”) which seemed to embody the spirit of some components of the non-discriminatory legacy of common carriage. This position came to be known as “net neutrality,” although the term has been subject to a diversity of definitions over the years and is also only one part of a potentially broader policy regime. In 2008, the FCC was forced to confront the issue when it was discovered that Comcast had begun interfering with the Bittorrent traffic of customers. The FCC sought to discipline Comcast under its untested Title I authority, Comcast thought that it had no such authority, and the DC Circuit Court agreed with Comcast. It appears that the Title I approach to deregulation was more extreme than even the FCC thought (although ex-Chairman Powell had no problem blaming the litigation strategy of the current FCC). To be clear, the Circuit Court said that the FCC did not have authority under Title I. But, what if the FCC had taken the alternate path back in 2002, deciding to classify broadband as a Title II service and “forbear” from all of the portions of the statute deemed irrelevant? Can the FCC still choose that path today?

Reclassification

Chairman Genachowski recently announced a proposed approach that would reclassify the transport portion of broadband as a Title II service, while simultaneously forbearing from the majority of the statute. This approach is motivated by the fact that Comcast cast a pall over the FCC’s ability to fulfill its explicit mandate from Congress to develop a National Broadband Plan, which requires regulatory jurisdiction in order for the FCC to be able to implement many of its components. I will discuss the reclassification debate in my next post. I’ll be at a very interesting event in DC tomorrow morning on the subject, titled The FCC’s Authority Over Broadband Access. For a preview of some of what will be discussed there, I recommend FCC General Counsel’s presentation from yesterday (starting at 30 minutes in), and Jon Neuchterlein’s comments at this year’s Silicon Flatirons conference. I am told that the event tomorrow will not be streamed live, but that the video will be posted online shortly thereafter. I’ll update this post when that happens. You can also follow tweets at #bbauth. [Update: the video and transcripts for Panel 1 and Panel 2 are now posted]

A New Communications Act?

In parallel, there has been growing attention to a revision of the Communications Act itself. The theory here is that the old structure just simply doesn’t speak sufficiently to the current telecommunications landscape. I’ll do a follow-up post on this topic as well, mapping out the poles of opinion on what such a revised Act should look like.

Bonus: If you just can’t get enough history and contemporary context on the structure of communications regulation, I did an audio interview with David Weinberger back in January 2009.

Filed Under: Broadband, National Security & Surveillance Tagged With: ,

No Warrant Necessary to Seize Your Laptop

January 27, 2010 by

The U.S. Customs may search your laptop and copy your hard drive when you cross the border, according to their policy. They may do this even if they have no particularized suspicion of wrongdoing on your part. They claim that the Fourth Amendment protection against warrantless search and seizure does not apply. The Customs justifies this policy on the grounds that “examinations of documents and electronic devices are a crucial tool for detecting information concerning” all sorts of bad things, including terrorism, drug smuggling, contraband, and so on.

Historically the job of Customs was to control the flow of physical goods into the country, and their authority to search you for physical goods is well established. I am certainly not a constitutional lawyer, but to me a Customs exemption from Fourth Amendment restrictions is more clearly justified for physical contraband than for generalized searches of information.

The American Civil Liberties Union is gathering data about how this Customs enforcement policy works in practice, and they request your help. If you’ve had your laptop searched, or if you have altered your own practices to protect your data when crossing the border, staff attorney Catherine Crump would be interested in hearing about it.

Meanwhile, the ACLU has released a stack of documents they got by FOIA request.
The documents are here, and their spreadsheets analyzing the data are here. They would be quite interested to know what F-to-T readers make of these documents.

ACLU Queries for F-to-T readers:
If the answer to any of the questions below is yes, please briefly describe your experience and e-mail your response to laptopsearch at aclu.org. The ACLU promises confidentiality to anyone responding to this request.
(1) When entering or leaving the United States, has a U.S. official ever examined or browsed the contents of your laptop, PDA, cell phone, or other electronic device?

(2) When entering or leaving the United States, has a U.S. official ever detained your laptop, PDA, cell phone, or other electronic device?

(3) In light of the U.S. government’s policy of conducting suspicionless searches of laptops and other electronic devices, have you taken extra steps to safeguard your electronic information when traveling internationally, such as using encryption software or shipping a hard drive ahead to your destination?

(4) Has the U.S. government’s policy of conducting suspicionless searches of laptops and other electronic devices affected the frequency with which you travel internationally or your willingness to travel with information stored on electronic devices?

Filed Under: National Security & Surveillance, Privacy & Security Tagged With: ,

Google Attacks Highlight the Importance of Surveillance Transparency

January 14, 2010 by

Ed posted yesterday about Google’s bombshell announcement that it is considering pulling out of China in the wake of a sophisticated attack on its infrastructure. People more knowledgeable than me about China have weighed in on the announcement’s implications for the future of US-Sino relations and the evolution of the Chinese Internet. Rebecca MacKinnon, a China expert who will be a CITP visiting scholar beginning next month, says that “Google has taken a bold step onto the right side of history.” She has a roundup of Chinese reactions here.

One aspect of Google’s post that hasn’t received a lot of attention is Google’s statement that “only two Gmail accounts appear to have been accessed, and that activity was limited to account information (such as the date the account was created) and subject line, rather than the content of emails themselves.” A plausible explanation for this is provided by this article (via James Grimmelmann) at PC World:

Drummond said that the hackers never got into Gmail accounts via the Google hack, but they did manage to get some “account information (such as the date the account was created) and subject line.”

That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.

Obviously, this report should be taken with a grain of salt since it’s based on a single anonymous source. But it fits a pattern identified by our own Jen Rexford and her co-authors in an excellent 2007 paper: when communications systems are changed to make it easier for US authorities to conduct surveillance, it necessarily increases the vulnerability of those systems to attacks by other parties, including foreign governments.

Rexford and her co-authors point to a 2006 incident in which unknown parties exploited vulnerabilities in Vodafone’s network to tap the phones of dozens of senior Greek government officials. According to news reports, these attacks were made possible because Greek telecommunications carriers had deployed equipment with built-in surveillance capabilities, but had not paid the equipment vendor, Ericsson, to activate this “feature.” This left the equipment in a vulnerable state. The attackers surreptitiously switched on the surveillance capabilities and used it to intercept the communications of senior government officials.

It shouldn’t surprise us that systems built to give law enforcement access to private communications could become vectors for malicious attacks. First, these interfaces are often backwaters in the system design. The success of any consumer product is going to depend on its popularity with customers. Therefore, a vendor or network provider is going to deploy its talented engineers to work on the public-facing parts of the product. It is likely to assign a smaller team of less-talented engineers to work on the law-enforcement interface, which is likely to be both less technically interesting and less crucial to the company’s bottom line.

Second, the security model of a law enforcement interface is likely to be more complex and less well-specified than the user-facing parts of the service. For the mainstream product, the security goal is simple: the customer should be able to access his or her own data and no one else’s. In contrast, determining which law enforcement officials are entitled to which information, and how those officials are to be authenticated, can become quite complex. Greater complexity means a higher likelihood of mistakes.

Finally, the public-facing portions of a consumer product benefit from free security audits from “white hat” security experts like our own Bill Zeller. If a publicly-facing website, cell phone network or other consumer product has a security vulnerability, the company is likely to hear about the problem first from a non-malicious source. This means that at least the most obvious security problems will be noticed and fixed quickly, before the bad guys have a chance to exploit them. In contrast, if an interface is shrouded in secrecy, and only accessible to law enforcement officials, then even obvious security vulnerabilities are likely to go unnoticed and unfixed. Such an interface will be a target-rich environment if a malicious hacker ever does get the opportunity to attack it.

This is an added reason to insist on rigorous public and judicial oversight of our domestic surveillance capabilities in the United States. There has been a recent trend, cemented by the 2008 FISA Amendments toward law enforcement and intelligence agencies conducting eavesdropping without meaningful judicial (to say nothing of public) scrutiny. Last month, Chris Soghoian uncovered new evidence suggesting that government agencies are collecting much more private information than has been publicly disclosed. Many people, myself included, oppose this expansion of domestic surveillance grounds on civil liberties grounds. But even if you’re unmoved by those arguments, you should still be concerned about these developments on national security grounds.

As long as these eavesdropping systems are shrouded in secrecy, there’s no way for “white hat” security experts to even begin evaluating them for potential security risks. And that, in turn, means that voters and policymakers will be operating in the dark. Programs that risk exposing our communications systems to the bad guys won’t be identified and shut down. Which means the culture of secrecy that increasingly surrounds our government’s domestic spying programs not only undermines the rule of law, it’s a danger to national security as well.

Update: Props to my colleague Julian Sanchez, who made the same observation 24 hours ahead of me.

Filed Under: National Security & Surveillance, Privacy & Security

Low Hit Rate Isn't the Problem with TSA Screening

November 20, 2008 by

The TSA, which oversees U.S. airport security, comes in for a lot of criticism — much of it deserved. But sometimes commentators let their dislike for the TSA get the better of them, and they offer critiques that don’t stand up logically.

A good example is yesterday’s USA Today article on TSA’s behavioral screening program, and the commentary that followed it. The TSA program trained screeners to look for nervous and suspicious behavior, and to subject travellers exhibiting such behavior to more stringent security measures such as pat-down searches or short interviews.

Commentators condemned the TSA program because fewer than 1% of the selected travellers were ultimately arrested. Is this a sensible objection? I think not, for reasons I’ll explain below.

Before I explain why, let’s take a minute to set aside our general opinions about the TSA. Forget the mandatory shoe removal and toiletry-container nitpicking. Forget that time the screener was rude to you. Forget the slippery answers to inconvenient Constitutional questions. Forget the hours you have spent waiting in line. Put on your blinders please, just for now. We’ll take them off later.

Now suppose that TSA head Kip Hawley came to you and asked you to submit voluntarily to a pat-down search the next time you travel. And suppose you knew, with complete certainty, that if you agreed to the search, this would magically give the TSA a 0.1% chance of stopping a deadly crime. You’d agree to the search, wouldn’t you? Any reasonable person would accept the search to save (by assumption) at least 0.001 lives. This hypothetical TSA program is reasonable, even though it only has a 0.1% arrest rate. (I’m assuming here that an attack would cost only one life. Attacks that killed more people would justify searches with an even smaller arrest rate.)

So the commentators’ critique is weak — but of course this doesn’t mean the TSA program should be seen as a success. The article says that the arrests the system generates are mostly for drug charges or carrying a false ID. Should a false-ID arrest be considered a success for the system? Certainly we don’t want to condone the use of false ID, but I’d bet most of these people are just trying to save money by flying on a ticket in another person’s name — which hardly makes them Public Enemy Number One. Is it really worth doing hundreds of searches to catch one such person? Are those searches really the best use of TSA screeners’ time? Probably not.

On the whole, I’m not sure I can say whether the behavioral screening program is a good idea. It apparently hasn’t caught any big fish yet, but it might have positive effects by deterring some serious crimes. We haven’t seen the data to support it, and we’ve learned to be skeptical of TSA claims that some security measure is necessary.

Now it’s time for the professor to call on one of the diehard civil libertarians in the class, who by this point are bouncing in their seats with both hands waving in the air. They’re dying to point out that our system, for good reason, doesn’t automatically accept claims by the authorities that searches or seizures are justified, and that our institutions are properly skeptical about expanding the scope of searches. They’re unhappy that the debate about this TSA program is happening after it was in place, rather than before it started. These are all good points.

The TSA’s behavioral screening is a rich topic for debate — but not because of its arrest rate.

Filed Under: National Security & Surveillance, Privacy & Security Tagged With: ,