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Net Neutrality and Internet Surveillance – An Update on Federal Actions and Activities –

2007 WLA Conference — Green Bay . Net Neutrality and Internet Surveillance – An Update on Federal Actions and Activities –. Bob Bocher Technology Consultant, WI Dept of Public Instruction, State Division for Libraries 608-266-2127, robert.bocher@wisconsin.gov

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Net Neutrality and Internet Surveillance – An Update on Federal Actions and Activities –

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  1. 2007 WLA Conference — Green Bay Net Neutrality and Internet Surveillance–An Update on Federal Actions and Activities– Bob BocherTechnology Consultant, WI Dept of Public Instruction, State Division for Libraries608-266-2127, robert.bocher@wisconsin.gov dpi.wi.gov/pld/ppt/netneutral.ppt

  2. Topics to Cover • Internet Neutrality • Definition and background • Internet, telecom and FCC regulations • Who supports what; impact on libraries • Internet Surveillance • State statutory protections • Federal DOJ activities • NSA, NSL and PATRIOT ACT • Other FCC Activities Impacting Libraries

  3. 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.

  4. 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.

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. 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

  12. Net Neutrality–Impact on Libraries 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 • 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

  13. 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.

  14. Topics to Cover • Internet Neutrality • Definition and background • Internet, telecom and FCC regulations • Who supports what; impact on libraries • Internet Surveillance • State statutory protections • Federal DOJ activities • NSA and PATIROT ACT • Other FCC Activities Impacting Libraries

  15. State statutes(43.30) Library policies ALA policy Library Privacy Protections

  16. WI Library Privacy Law – 43.30 • WI Library privacy law (43.30)covers the following: • Any library supported by public funds • Any records indicating the identity of a library user • Any use of a library’s materials or other resources or services (emphasis added) public libraries, public K-12 schools, UW and WTCS libraries name, telephone no. street address, email, login, surveillance tapes(bill pending to exempt tapes) circulation records, Internet use, reference questions, etc.

  17. 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 LawEnforcement Act, CALEA • 2001: USA PATRIOT Act and NSA warrantless wiretap program • 2007: DOJ report on FBI abuses of NSLs

  18. 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.

  19. WiscNet WiscNet Core Network (BadgerNet) WiscNet AR CR CR AR AR CR CR AR WiscNet AR AR WiscNet WiscNet Library Library Library IFLS HQ Library UW Campus NW Lata NE Lata County Eau Claire Green Bay K-12 Madison Milwaukee SW Lata SE Lata Tech College UW Campus K-12 Tech College UW Campus At some point in the network, some ISP must comply. CHICAGO

  20. 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

  21. NSA Surveillance Activities 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 • 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?

  22. 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

  23. 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) “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

  24. 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

  25. 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

  26. 2007 WLA Conference - October 18, 2007 Net Neutrality and Internet Surveillance–An Update on Federal Actions and Activities– Questions ?? Bob BocherTechnology Consultant,State Library Division608-266-2127, robert.bocher@wisconsin.gov

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

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