J.G Harrington: Securing our Internet Traffic

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U.S. Regulation of Canadian
Internet Traffic
J.G. Harrington
September 24, 2015

u FCC Regulation
u Law Enforcement Issues
u National Security
u Miscellaneous
Topics

u General regulatory authority over communications matters at the
national level
u Covers interstate and foreign communication by wire or radio
u States can regulate intrastate services (not relevant here)
u Has asserted authority over Internet access services
u Hotly contested
FCC

u Direct power over common carriers
u Defined to cover transmission with no change in form or content
u Domestic and international service covered
u Historically, no direct regulation of Internet providers
u 1997 decision and later orders classified Internet access as an
“information service” not subject to common carrier regulation
The FCC’s Authority

u Classifies retail Internet access services as common carrier
services
u Must serve mass market end users and provide access to substantially
all of the Internet
u Excluded:
u Enterprise services
u Backbone and other wholesale services
u Services that use IP but do not provide access to the whole Internet
Impact of Network Neutrality Decision

u Most rules apply only when traffic originates or terminates in the
U.S.
u Providers do not need authorization for their traffic to transit the U.S. on
its way somewhere else
u If a U.S.-based transiting carrier is used, that carrier is subject to U.S.
rules
u Origination or termination requires FCC authorization
u Traffic can be deemed to originate or terminate in U.S. if it is handed off
to another carrier inside the country
FCC Regulation of Non-U.S. Traffic

u Entry/exit regulation
u Must obtain FCC authorization to provide international common carrier
services in U.S.
u Permission to exit market also required, but generally granted
automatically
u Regulated providers also subject to ongoing obligations
u Reporting
u Payment of fees and contributions
u Some exemptions for international-only providers
u Miscellaneous obligations
Specific FCC Requirements

u Rules do not apply to traffic transiting U.S.
u Potential issues concerning interconnection with content providers
and others possible in the future
u Also potential opportunities depending on how FCC decisions play out
Network Neutrality

u U.S. carriers are subject to significant law enforcement obligations
u Response to lawful process for surveillance and production of records
u CALEA – requires specific capabilities to comply with surveillance
requests
u These requirements will apply to underlying carriers used to transport
traffic across the U.S.
u Law enforcement issues often addressed in FCC authorization
process
Law Enforcement Issues

u U.S. national security agencies have broad powers to obtain access
to data transmitted internationally.
u Subject to authorization and legal review by special court
u Court has pushed back on occasion, but not often
u Typically no power over purely domestic U.S. traffic, but non-U.S.
traffic transiting the country is subject to surveillance
National Security

u Most U.S. content-related requirements apply only when U.S. end
users have access to content
u Copyright, trademark
u Defamation
u U.S. border crossings require State Department approval.
Miscellaneous

J.G. Harrington
Cooley LLP
1299 Pennsylvania Avenue, NW
Suite 700
Washington, DC 20004
+1 202/776-2818
jgharrington@cooley.com
Contact Information

J.G Harrington: Securing our Internet Traffic

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