Could traffic filtering get AT&T into legal hot water?

Deep packet filtering on a network level could be legally dicey, experts say

Several experts in telecommunications law warn that any elaborate attempt to filter traffic by AT&T could cause the carrier legal headaches.

James Cicconi, AT&T’s senior vice president for external & legal affairs, set off a firestorm last week after The New York Times reported that he said his company was working with the Motion Picture Association of America and the Recording Industry Association of America to implement a digital-fingerprinting scheme and would detect and filter out copyrighted material from its network.

Cicconi made his remarks during a panel discussion with representatives from Microsoft, NBC Universal and several digital-filtering companies at last week’s Consumer Electronics Show. Most of the discussion revolved around whether carriers should start taking a more active role at sifting for and blocking copyrighted content at the network level.

“We are very interested in a technology-based solution and we think a network-based solution is the optimal way to approach this,” said Cicconi, according to Times. “We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.”

Of course, AT&T hasn’t yet released any specific details of what plans it will or will not consider. When asked to elaborate on the content of the company’s remarks, the company has only released a statement saying that “this is not about the vast majority of customers who consume content online legally” but is rather “about combating illegal activity.”

But several experts in telecommunications law have already warned that any elaborate attempt to filter traffic by AT&T could cause the carrier legal headaches. For example, as Columbia Law School Professor Tim Wu noted this week, carriers currently bear no legal responsibility for the legality of the content that goes through their networks. Thus, if someone with an AT&T subscription spends all day illegally Bit Torrenting movies, the fault lies with the individual pirate and not the carrier.

But in order to keep their legal immunity from piracy charges, carriers must meet certain requirements. According to a 1998 law that deals with carrier liability for illegal digital communications (17 U.S.C. § 512), carriers can maintain their liability as long as “the transmission [of copyrighted content] is carried out through an automatic technical process without selection of the material by the service provider” or if “the material is transmitted through the system or network without modification of its content.” According to Wu, “once AT&T gets in the business of picking and choosing what content travels over its network” then “it runs a serious risk of losing its all-important immunity.” Wu acknowledges that the law as written “is not entirely clear,” but adds that AT&T could likely still have to deal with legal headaches, as any packet-filtering system might turn AT&T into “the world’s largest target for copyright infringement lawsuits.”

And while AT&T may be working on a filtering plan that would not put its immunity status in jeopardy, it’s likely that any advanced filtering process could at least be challenged as a selection mechanism that does not constitute the “automatic technical process” mandated by law.

“Everyone who understands the technology agrees that most simple filtering efforts are doomed to fail, since all the file-sharing applications will simply encrypt the traffic, [thus] necessitating more complex deep-packet protocol analysis, at a minimum,” says Fred von Lohmann, a senior staff attorney with the Electronic Frontier Foundation “I’m told that 20% of Bit Torrent traffic is already encrypted.”

And copyright immunity isn’t the only potential snare AT&T could face in any extensive content-filtering scheme. Orin Kerr, a law professor at the George Washington University Law School who blogs frequently at the Volokh Conspiracy, notes that any content filtering that intercepts electronic communications over an interstate network could violate provisions within the Federal Wiretap Act (18 U.S.C § 2520).

“Although there are no cases directly on this, network-level scanning of traffic for copyrighted content is likely to be deemed an ‘intercept’ of the contents of communications,” writes Kerr, who also believes that the legal exceptions for intercepting content (18 U.S.C. § 2511(2)(a)(i) and 18 U.S.C. § 2511(2)(d) wouldn’t extend to network-level monitoring for copyrighted material. “To avoid liability, these providers probably would need to amend their Terms of Service so that users would explicitly consent to allowing their ISPs to monitor them for copyright violations. Assuming customers didn’t revolt against this, that would permit monitoring under the consent exception, at least when a user who actually signed the contract was being monitored.”

Of course, all this analysis is still purely speculative since AT&T has yet to disclose what plans, if any, it means to enact. But as the FCC’s vow to investigate Comcast for allegedly blocking peer-to-peer traffic last year demonstrates, the potential legal issues involved with network-level filtering of copyrighted material will be difficult for any carrier to navigate. Cicconi himself acknowledged as much last week when he told the Times that AT&T planned to handle its content-filtering program delicately.

“Whatever we do has to pass muster with consumers and with policy standards. There is going to be a spotlight on it,” he told the Times. “We’ve got to figure out a friendly way to do it, there’s no doubt about it.”

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