Sorry to have relied on Ryan’s notes! Thanks for the clarification. I’m not sure if you realized it, but a CFAA violation was cited in Hart v. Comcast filed last November, which incidentally Ryan Singel reported on.

Also, I just caught up on the news that Comcast is working with BitTorrent (the company) to make it (the protocol) easier to network-manage. I am curious whether Hart still sees the need to carry through with the suit.

Jon

Thanks for the good questions. Andy Oram over at the O’Reilly blog raised similar questions, and I posted a comment to that post raising some of the points I’m going raise now.

I agree that Comcast has much less to worry about than AT&T and Charter, and I said so during my talk.

But you’re missing something in your analysis. Comcast does not need to worry about the Wiretap Act (for the reasons you mention), but it should worry about the Pen Register, Trap & Trace Act. In particular, 18 U.S.C. § 3121(a) forbids the use of a pen register which is defined in § 3127(3) as “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted . . . .”

But there are three reasons why Comcast need not worry much about this law: First, the Pen Register Act provides somewhat broader provider exceptions than the Wiretap Act. (For example, the Pen Register Act allows monitoring for “the protection of users of that service from abuse of service or unlawful use of service.”)

Second, the Pen Register Act does not provide a civil cause of action. Third, violations of the Pen Register Act are misdemeanors. § 3121(d).

But Comcast isn’t completely in the clear. Not only do they monitor, they also send forged RST packets to throttle Bittorrent communications. Two years ago, in an unrelated context, I argued in a comment thread on Ed Felten’s blog that this might violate the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. There are many reasons to think that Comcast isn’t violating the CFAA, but I wonder if Comcast’s lawyers even took the law into consideration.

I was in fact in attendance for Paul’s panel, but I didn’t digest it until now. (I *was* on my laptop during the session, but not looking at the right pages…)

So here’s my challenge for Paul: Good point on NebuAd and the copyright-violation filtering. But I think your case against throttling is the weakest.

I assume you are deriving a tort out of § 2510 (2)(a)(i): “a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.”

So what is meant by “service observing and random monitoring”? Clearly Chapter 119 indicates that the crime is to intercept content — “any information concerning the substance, purport, or meaning of that communication.” (In other words, as Samir argues, what is “knowable”). But Comcast has only been inspecting TCP packets to determine if they are in fact BitTorrent, it is presently of no concern to BitTorrent what is being communicated *in* the packet.

This seems to me to be equivalent to the postal service weighing a package to ensure that there is enough postage on it. Though there’s an interesting twist with Media Mail, which is intended for shipping books or computer media: According to a 2005 article in the USC Daily Trojan, if the USPS sees a Media Mail that is heavier than paper or plastic ought to weigh, they will open it to check (!)

Not to excuse the USPS, but it appears that Comcast checking BitTorrent packets is nowhere near as intrusive as that. And thus I’m hard-pressed to see such activity as violating either the letter or the spirit of the law.

Jon