What does "Open Internet" have to learn from the Electronic Communications Privacy Act?
Originally published: March 10, 2010
Last updated: March 10, 2010 - 4:00pm
Issues similar to "reasonable network management" come up in the context of wiretaps and specifically the Electronic Communications Privacy Act (ECPA).
ECPA is described as a rule governed by exceptions. The rule is, "thou shall not listen in on other people's communications," where "thou" is everyone including ISPs. One of the exceptions to ECPA is that ISPs can intercept communications when necessary for the rendition and protection of their network. This does not, however, give license to ISPs to do anything in the name of rendering or protecting service. According to the Department of Justice, ISPs "should attempt to tailor their monitoring and disclosure to that which is reasonably related to the purpose of the monitoring."
As the FCC examines the Open Internet proceeding and the possible distinction between reasonable and non-reasonable network management, can anything be learned from ECPA and its surrounding caselaw, including the concept of "activity necessary for the rendition and protection of that service"?
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