1. LEGAL and REGULATORY ISSUES FOR ISPs Susan Bahr, Esq. Law Offices of Susan Bahr, PC (301) 258-8947 sbahr@bahrlaw.com September 2004 Presentation available at www.bahrlaw.com

2. Law Offices of Susan Bahr, PC TOPICS 1.HOT SPOTS and WAR DRIVING 2.SPAM, INTERNET FILTERING, COPYRIGHT, PRIVACY, BILLING, BAD CREDIT and BUNDLING 3.TELEMARKETING and CPNI 4.OUTAGE REPORTING 5.DEFINITIONS: INFORMATION SERVICE vs. TELECOMMUNICATIONS SERVICE, CABLE MODEM SERVICE, VOIP and WHY IT MATTERS

3. Law Offices of Susan Bahr, PC 1. HOT SPOTS WAR DRIVING

4. Law Offices of Susan Bahr, PC AIRPORT HOT SPOTS FCC affirmed rights of consumers to install antennas for Wi-Fi access points. Seen as “win” for airlines Public Notice http:// hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-1844A1.doc Airlines interfering with each other’s use of Wi-Fi frequencies Airports may want to set up own networks.

5. Law Offices of Susan Bahr, PC YOUR CUSTOMERS’ HOT SPOTS Should you prohibit customers from setting up their own wireless networks connected to your Internet service? –Put language in Terms and Conditions, Acceptable Use Policy, or other contracts with customers

6. Law Offices of Susan Bahr, PC WAR DRIVING August 2004: 3 Michigan men plead guilty –Used wireless access in Lowe’s parking lot –To obtain credit card info –FBI involved –Crime: unauthorized access to a protected computer

7. Law Offices of Susan Bahr, PC WAR DRIVING State laws –California Penal Code sections 13848 to 13848.6 Refer to “unlawful access” to wireless networks http://caselaw.lp.findlaw.com/cacodes/pen/13848-13848.8.html –New Hampshire 2003: HB 495 to amend RSA 638:17 Making owner of wireless network responsible for security http://www.gencourt.state.nh.us/legislation/2003/HB0495.html

8. Law Offices of Susan Bahr, PC TO-DOs Review customer contracts if the ISP wants to restrict customer Wi-Fi networks. Review security of the network.

9. Law Offices of Susan Bahr, PC 2. SPAM INTERNET FILTERING COPYRIGHT PRIVACY BILLING BAD CREDIT BUNDLING

10. Law Offices of Susan Bahr, PC SPAM CAN-SPAM Act –Effective 1/1/04 –Bans false or misleading header information –Prohibits deceptive subject lines –Requires commercial email to provide an opt-out method, and include sender’s physical postal address

11. Law Offices of Susan Bahr, PC SPAM FTC CAN-SPAM Rules –General info: http://www.ftc.gov/spam/ –Guidelines for commercial entities http://www.ftc.gov/bcp/conline/pubs/buspubs/canspam.htm –Consumer complaints: http://www.ftc.gov –Forward unwanted commercial email to: spam@uce.gov

12. Law Offices of Susan Bahr, PC SPAM FTC CAN-SPAM Rules –Recent action Labelling email as “SEXUALLY-EXPLICIT:” in the subject line http:// www.ftc.gov/opa/2004/04/adultlabel.htm National Do-Not Email Registry, report to Congress “Bounty system,” report to Congress

13. Law Offices of Susan Bahr, PC SPAM FTC CAN-SPAM Rules –Upcoming action Definition of “primary purpose” of commercial email (vs. transactional and relationship messages) http://www.ftc.gov/opa/2004/08/canspamfrn.htm

14. Law Offices of Susan Bahr, PC SPAM FTC CAN-SPAM Rules –Upcoming action Nov. 9-10: Email authentication summit –FTC and NIST –Domain-level authentication systems –Comments and requests to participate are due TODAY (9/30/04). http://www.ftc.gov/opa/2004/09/emailauth.htm

15. Law Offices of Susan Bahr, PC SPAM FCC CAN-SPAM Rules –Wireless Cannot send commercial messages to any address referencing an Internet domain name associated with wireless subscriber messaging services absent the express permission of the user. –CMRS providers give domain names to the FCC, to be put on the FCC's website.

16. Law Offices of Susan Bahr, PC SPAM FCC CAN-SPAM Rules –Wireless Cannot use automatic telephone dialing systems to send text messages to wireless phones Effective date: –Some rules in effect now; some later. –See http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-252260A1.doc Order: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-194A1.doc

17. Law Offices of Susan Bahr, PC SPAM State SPAM Laws –www.spamlaws.com/state/

18. Law Offices of Susan Bahr, PC INTERNET FILTERING Child Online Protection Act (COPA) –Websites that allow kids to view porn –ACLU says filtering technology, not law, should protect kids –Enacted 1998 –Superseded the 1996 Communications Decency Act –2004: Supreme Court said Act likely is unconstitutional

19. Law Offices of Susan Bahr, PC INTERNET FILTERING Children's Internet Protection Act (CIPA) –Schools and libraries getting E-rate funding must install Internet filters on their computers –Enacted 2000 –2003: Supreme Court upheld Act http://www.ala.org/ala/washoff/WOissues/civilliberties/ cipaweb/cipa.htm

20. Law Offices of Susan Bahr, PC INTERNET FILTERING Children's Online Privacy Protection Act (COPPA) –Protecting children's privacy from online marketers –Enacted 1998 –COPPA text: http://www.ftc.gov/ogc/coppa1.htm

21. Law Offices of Susan Bahr, PC INTERNET FILTERING State laws –PA law requiring ISPs to block websites containing child porn held unconstitutional by federal district court (9/04)

22. Law Offices of Susan Bahr, PC COPYRIGHT Digital Millennium Copyright Act (DMCA) –Liability of ISPs compliant with the DMCA is limited when their users violate copyright law. –Summary at http://www.copyright.gov/legislation/dmca.pdf OPASTCO website

23. Law Offices of Susan Bahr, PC COPYRIGHT DMCA –Copyright owner alleging infringement may: Tell ISP; ISP removes or disables access to alleged infringing material Get court subpoena to find out identity of end user Get court injunction to force ISP to block access, terminate an account, etc.

24. Law Offices of Susan Bahr, PC COPYRIGHT DMCA –ISP should designate an agent to receive notices from copyright owners alleging infringement. http://www.loc.gov/copyright/onlinesp Place the contact information for the agent on the ISP's website.

25. Law Offices of Susan Bahr, PC COPYRIGHT DMCA –Develop a policy that provides for the termination of end users that are repeat infringers. Inform end users about the policy. –Educate staff, and develop procedures for handling complaints.

26. Law Offices of Susan Bahr, PC COPYRIGHT DMCA –RIAA v. Verizon Song sharing with peer-to-peer networks Material is NOT on Verizon’s network Subpoena to identify the allegedly infringing end users Last court decision, Verizon won U.S. Supreme Court to decide whether to hear the case, perhaps early October

27. Law Offices of Susan Bahr, PC PRIVACY S. 1801: Video Voyeurism Prevention Act of 2004 –Prohibits the videotaping or photographing of the naked or underwear-clad private parts of a person without consent when the person has a reasonable expectation of privacy –Passed by House 9/21/2004; expected to be passed by Senate –Bill text: http://thomas.loc.gov/

28. Law Offices of Susan Bahr, PC BILLING Where local exchange carrier bills for Internet access: –Highlight changes to the Internet service provider –Inquiry contact number –See FCC rule Section 64.2401

29. Law Offices of Susan Bahr, PC BUNDLING Bundling = Offering Internet access with {service or CPE} at a price that’s less than the sum of two items priced separately Caution: –Services may need to be available separately –Universal service contribution can be tricky FCC bundling rules http:// www.fcc.gov/Bureaus/Common_Carrier/Orders/2001/fcc01098.doc

30. Law Offices of Susan Bahr, PC BAD CREDIT Permissible to deny or restrict service because of credit concerns based on credit report Must give affected consumers an opportunity to obtain a free credit report and/or challenge its accuracy FTC: fines of ~$1.5 million to Sprint and AT&T See http://www4.law.cornell.edu/uscode/15/1681m.html

31. Law Offices of Susan Bahr, PC TO-DOs Review commercial emails for compliance with CAN-SPAM Act. Make sure the ISP is listed with Copyright Office. Make sure the ISP has procedures for complying with the DMCA. Review billing practices. Review bundled offerings. Review credit policies.

32. Law Offices of Susan Bahr, PC 3. TELEMARKETING CPNI

33. Law Offices of Susan Bahr, PC TELEMARKETING Do-Not-Call registry http://www.ftc.gov/donotcall/ How to comply http://www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.htm Additional FCC rules –8 am to 9 pm –See FCC rule section 64.1200 http://www.fcc.gov/cgb/donotcall/

34. Law Offices of Susan Bahr, PC CPNI Customer Proprietary Network Information (CPNI) –E.g., info about the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service; and info contained in customers’ bills –Restrictions on use of CPNI that local exchange carriers and interexchange carriers have –See FCC rule sections 64.2401 to 64.2409

35. Law Offices of Susan Bahr, PC TO-DOs Review telemarketing procedures for compliance with Do-Not-Call and other telemarketing rules. Review the use of the telco’s CPNI for marketing ISP services.

36. Law Offices of Susan Bahr, PC 4. OUTAGE REPORTING

37. Law Offices of Susan Bahr, PC OUTAGE REPORTING Applies to local exchange carriers, interexchange carriers and some wireless providers New rules go into effect _________ For most LEC services, –Outage must potentially affect 900,000 user- minutes –Last at least 30 minutes –First report to FCC within 2 hours

38. Law Offices of Susan Bahr, PC OUTAGE REPORTING Order released 8/19/04 http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-188A1.doc Erratum released 9/1/04 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-251763A1.doc

39. Law Offices of Susan Bahr, PC TO-DOs Make sure your telco is aware of upcoming changes to the outage reporting rules.

40. Law Offices of Susan Bahr, PC 5. DEFINITIONS: INFORMATION SERVICE vs. TELECOMMUNICATIONS SERVICE CABLE MODEM SERVICE VOIP WHY IT MATTERS

41. Law Offices of Susan Bahr, PC DEFINITIONS INFORMATION SERVICE (aka ENHANCED SERVICE) TELECOMMUNICATIONS SERVICE

42. Law Offices of Susan Bahr, PC CABLE MODEM SERVICE Brand X v. FCC decision by 9 th Circuit –FCC had said cable modem service is information service –Court said cable modem service is, in part, a telecommunications service –Status: FCC asked U.S. Supreme Court to review case

43. Law Offices of Susan Bahr, PC VOIP INFORMATION SERVICE or TELECOMMUNICATIONS SERVICE? –3/10/04: FCC Notice of Proposed Rulemaking for IP-Enabled Services http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-28A1.pdf

44. Law Offices of Susan Bahr, PC VOIP INFORMATION SERVICE or TELECOMMUNICATIONS SERVICE? Pulver.com http://hraunfoss.fcc.gov/edocs_ public/ attachmatch/FCC-04- 27A1.pdf

45. Law Offices of Susan Bahr, PC VOIP INFORMATION SERVICE or TELECOMMUNICATIONS SERVICE? NANP VOIP #

46. Law Offices of Susan Bahr, PC VOIP INFORMATION SERVICE or TELECOMMUNICATIONS SERVICE? End user application Communication protocols used to transmit over the facility Transmission facility

47. Law Offices of Susan Bahr, PC WHY IT MATTERS CALEA –Proposal: CALEA applies to facilities-based providers of broadband Internet access service and to managed or mediated VOIP services. –FCC Notice of Proposed Rulemaking http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-187A1.doc Comments 11/8/04; reply comments 12/7/04 –Article: http://slate.msn.com/id/2095777/

48. Law Offices of Susan Bahr, PC WHY IT MATTERS Universal service contributions –Just on VOIP? –On all ISPs? Compensation to local exchange carriers 911 access

49. Law Offices of Susan Bahr, PC TO-DOs