Re: FCC takes steps to remove neutrality, privacy obligations from wireless broadband

[David Farber <dave () farber net>]

Begin forwarded message:

From: Peter Swire <peter () peterswire net>
Date: March 23, 2007 7:42:52 AM EDT
To: dave () farber net
Subject: RE: [IP] FCC takes steps to remove neutrality, privacy  
obligations from wireless broadband

Dave:

I think the previous post about privacy and wireless broadband is  
incomplete.

The privacy rules under 47 USC 222, called the "CPNI rules," focus on  
what a carrier can do in terms of selling customer lists to other  
companies.  Think marketing-related privacy.

The anti-wiretap privacy laws would still apply, however.  Under the  
Electronic Communications Privacy Act, 18 U.S.C. 2510, current law  
would still prohibit a phone company or the government from  
wiretapping content, unless an exception applied.

There are plenty of exceptions to ECPA, and the current flap about  
National Security Letters show the even broader exceptions when it  
comes to traffic analysis (who you called/who called you).  But the  
re-classification to "information services" for wireless broadband  
wouldn't change those rules, as far as I can see.

Peter

Prof. Peter Swire
C. William O'Neill Professor of Law
Moritz College of Law of the
Ohio State University
Senior Fellow, Center for American Progress
(240) 994-4142, www.peterswire.net


-------- Original Message --------
Subject: [IP] FCC takes steps to remove neutrality, privacy obligations
from wireless broadband
From: David Farber <dave () farber net>
Date: Thu, March 22, 2007 4:59 pm
To: ip () v2 listbox com

Begin forwarded message: From: Ethan Ackerman  
<eackerma () u washington edu> Date: March 22, 2007 2:47:07 PM EDT To:  
David Farber <dave () farber net> Subject: FCC takes steps to remove  
neutrality, privacy obligations from wireless broadband Greetings  
Dave, The FCC held a meeting today (http://hraunfoss.fcc.gov/ 
edocs_public/attachmatch/DOC-271562A1.pdf) where they took the  
expected step of declaring wireless broadband service an "information  
service," effectively removing it from many of the protections it had  
in its previous classification. The press releases and media coverage  
to follow have started already (see http://www.mediaaccess.org/press/ 
MAP%20Statement%20on%20Wireless% 20Ruling.pdf for an example) Most  
coverage will probably focus on the issue of "net neutrality," as  
that is one of the main issues this category change raises. It is not  
the only issue, however. Important protections within the  
Telecommunications Act turn on how a service is classified, including  
the arguably decent privacy protections afforded telecommunications  
services. By redefining the classification of wireless broadband  
service, The FCC has *probably* removed the privacy protections of  
federal law (47 USC 222) from this service. This is not little deal.  
This section is one of the main laws that the EFF sued AT&T over  
regarding NSA wiretapping. Arguably, if AT&T had been wiretapping  
broadband internet for the NSA, EFF couldn't have even sued under  
that law. (*Probably* - because we won't know for sure until the  
final order comes out. But the FCC didn't explicitly preserve these  
protections in cable broadband or DSL recategorizations, there's no  
reason to think they will now.)  
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