Anthony J. Pennings, PhD

WRITINGS ON DIGITAL ECONOMICS, ENERGY STRATEGIES, AND GLOBAL COMMUNICATIONS

Potential Bill on Net Neutrality and Deep Packet Inspection

Posted on | October 17, 2018 | No Comments

Just got this discussion draft by Eliot Lance Engel (D-NY) from one of my former colleagues at New York University and a former Verizon executive, Thomas Dargan. Eliot Lance Engel (D-NY) is the U.S. Representative for New York’s 16th congressional district that contains parts of the Bronx and Westchester County.[1] US telecommunications policy is based on the Communications Act of 1934 that created the Federal Communications Commission and established the importance of common carriage, a concept that is included in current understandings of net neutrality. Deep Packet Inspection (DPI) is the capability of Internet services providers (ISPs) to inspect and potentially discriminate against content, devices, companies, or countries.

115TH CONGRESS 2D SESSION

[DISCUSSION DRAFT]

H. R. __

To amend the Communications Act of 1934 to prohibit broadband internet access service providers from engaging in deep packet inspection.

IN THE HOUSE OF REPRESENTATIVES
—— introduced the following bill; which was referred to the Committee on ______________

A BILL

To amend the Communications Act of 1934 to prohibit broadband internet access service providers from engaging in deep packet inspection.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the “Deep Packet Privacy Protection Act of 2018”.

SEC. 2. PROHIBITION ON DEEP PACKET INSPECTION.

(a) IN GENERAL.—Title VII of the Communications Act of 1934 (47 U.S.C. 601 et seq.) is amended by adding at the end the following:

“SEC. 722. PROHIBITION ON DEEP PACKET INSPECTION.

“(a) IN GENERAL.—A broadband internet access service provider may not engage in deep packet inspection, except in conducting a reasonable network management practice.

“(b) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to prohibit a broadband internet access service provider from engaging in deep packet inspection as required by law, including for purposes of criminal law enforcement, cybersecurity, or fraud prevention.

“(c) DEFINITIONS.—In this section:
“(1) BROADBAND INTERNET ACCESS SERVICE.—

“(A) IN GENERAL.—The term ‘broadband internet access service’ means a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service.

“(B) FUNCTIONAL EQUIVALENT; EVASION.—The term ‘broadband internet access service’ also includes any service that—

“(i) the Commission finds to be providing a functional equivalent of the service described in subparagraph (A); or

“(ii) is used to evade the prohibitions set forth in this section.

“(2) DEEP PACKET INSPECTION.—The term ‘deep packet inspection’ means the practice by which a broadband internet access service provider reads, records, or tabulates information or filters traffic based on the inspection of the content of packets as they are transmitted across their network in the provision of broadband internet access service.

“(3) NETWORK MANAGEMENT PRACTICE.—The term ‘network management practice’ means a practice that has a primarily technical network management justification, but does not include other business practices.

“(4) REASONABLE NETWORK MANAGEMENT PRACTICE.—The term ‘reasonable network management practice’ means a network management practice that is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband internet access service, including—

“(A) delivering packets to their intended destination;

“(B) detecting or preventing transmission of malicious software, including viruses and malware; and

“(C) complying with data protection laws and laws designed to prohibit unsolicited commercial electronic messages, including the CAN-SPAM Act of 2003 (15 U.S.C. 7701 et seq.) and section 1037 of title 18, United States Code.”.

(b) DEADLINE FOR RULEMAKING.—Not later than 180 days after the date of the enactment of this Act, the Federal Communications Commission shall issue a rule to implement the amendment made by subsection (a).

(c) EFFECTIVE DATE.—The amendment made by this section shall apply beginning on the date that is 270 days after the date of the enactment of this Act.

Notes

[1] Tom Dargan can be reached at US 914-582-8995
[2] Eliot Lance Engel (D-NY) official website.

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AnthonybwAnthony J. Pennings, PhD is Professor at the Department of Technology and Society, State University of New York, Korea and Research Professor at Stony Brook University. Before joining SUNY, he taught at New York University. Previously, he taught at St. Edwards University in Austin, Texas, Marist College in New York, and Victoria University in New Zealand. He has also spent time as a Fellow at the East-West Center in Honolulu, Hawaii.

Category: telecom policy and net neutrality
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    Professor at State University of New York (SUNY) Korea since 2016. Moved to Austin, Texas in August 2012 to join the Digital Media Management program at St. Edwards University. Spent the previous decade on the faculty at New York University teaching and researching information systems, digital economics, and strategic communications.

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