FC: A defense of Comcast's recording web traffic of subscribers

From: Declan McCullagh (declanat_private)
Date: Wed Feb 13 2002 - 16:46:24 PST

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    Sequence of events:
    1. Word leaks out, first in mailing lists, then confirmed by Ted Bridis, 
    that Comcast is recording user browsing data.
    2. Expected privacy fuss ensues, with Rep. Markey, always ready to pounce 
    on suspected corporate miscreants, writing Comcast the traditional nastygram.
    3. Whoops! Turns out federal law says a cable operator "shall not use the 
    cable system to collect personally identifiable information concerning any 
    subscriber without the prior written or electronic consent of the 
    subscriber concerned." (Let's hope that Comcast's lawyers did their 
    homework when writing their privacy policy, otherwise might we see a class 
    action lawsuit asking for statutory damages of $1,000 per user?)
    4. Comcast backs down.
    Call me a curmudgeon, but all this doesn't seem that terribly alarming -- 
    assuming Comcast is telling the truth when saying (a) data were retained 
    for only a week, (b) their privacy policy permitted this, and (c) the info 
    was used for performance purposes and not given to anyone else. Put another 
    way, there are benefits to aggregating information on web use: It can help 
    improve network performance and lower the cost of the service.
    So if Comcast's privacy policy permitted this, what's the big deal? Anyone 
    looking for a more privacy-protective service (and the point about 
    subpoenas for stored data is a good one) should have taken their business 
    elsewhere. To Earthlink, for example, which seems to be offering just that.
        Philadelphia (February 13, 2002) - Comcast Cable Communications
        President Stephen B. Burke issued the following statement today
        regarding Internet privacy:
        "Comcast respects the privacy of all our subscribers and is committed
        to fully protect their rights. Comcast has not shared and will not
        share personal information about where our subscribers go on the Web,
        either for any internal purpose or with any outside party, except as
        required by law. Consistent with our subscriber agreement and our
        privacy policy, which every subscriber acknowledges before receiving
        our service, Comcast reviews information in aggregate form only for
        purposes of network performance management to ensure an optimal
        Internet network experience for our subscribers."
        "Since we launched our own Internet network six weeks ago in the wake
        of Excite@Home's bankruptcy, IP and URL information has been stored
        temporarily. This information has never been connected to individual
        subscribers and has been purged automatically to protect subscriber
        privacy. Beginning immediately, we will stop storing this individual
        customer information in order to completely reassure our customers
        that the privacy of their information is secure."
        By Ted Bridis
        Associated Press Writer
        Wednesday, February 13, 2002; 2:14 PM
        WASHINGTON Comcast Corp., the nation's third-largest cable company,
        pledged Wednesday to immediately stop recording the Web browsing
        activities of each of its 1 million high-speed Internet subscribers.
        Comcast said in a statement that it will stop storing the information
        "in order to completely reassure our customers that the privacy of
        their information is secure." The Associated Press reported Tuesday
        that the company had started recording each customer's visit to a Web
        page as part of a technology overhaul to save money and speed up the
        network. [...]
    Date: Wed, 13 Feb 2002 09:30:33 -0500
    From: "James Maule" <mauleat_private>
    To: <declanat_private>
    Subject: News Item
    Article in Phila Inquirer about Comcast recording every move of its 
    internet cable customers. Here's the link to the story. I'll let you write 
    the introductory blerb and a Subject heading... you're quite adept at that. 
    Note that the URL is responding rather slowly.
      Posted on Wed, Feb. 13, 2002
    Comcast tracks users' Web browsing
    The cable firm said it is being done to save money and improve service. It 
    acknowledged it didn't notify customers.
    By Ted Bridis
    Associated Press
    WASHINGTON - Comcast Corp., the nation's third-largest cable company, has 
    begun tracking the Web-browsing activities of its one million 
    high-speed-Internet subscribers without notifying them.
    The Philadelphia-based company said yesterday that the tracking of each Web 
    page a subscriber visits was part of a technology overhaul designed to save 
    money and improve the speed of cable Internet service and was not intended 
    to infringe on privacy.
    But technology experts cautioned that the data could be subpoenaed by law 
    enforcement agencies or lawyers in civil cases, and they questioned whether 
    Comcast's move reflected a more cavalier attitude toward online privacy 
    after the Sept. 11 terrorist attacks.
    [rest of article not copied]
        February 13, 2002
        Mr. Brian Roberts
        President, Comcast Corporation
        1500 Market Street
        Philadelphia, PA 19102-2148
        Dear Mr. Roberts:
        I am writing with respect to recent media reports regarding Comcast's
        use of cable facilities to gather personal data from consumers of
        Comcast's broadband telecommunications service. I have concerns about
        the allegations raised in these reports and the nature and extent of
        any transgressions of the law that may have resulted in consumer
        privacy being compromised.
        Consumer privacy in the digital era is fundamental to ensuring trust
        between citizens and the owners of nation's communications networks
        and services. The cable industry has a long history of safeguarding
        consumer privacy with respect to the television viewing habits of
        consumers through its provision of cable service. I believe that many
        consumers would be understandably concerned if our nation's cable
        operators begin to monitor Americans' use of cable systems for other
        services such as telecommunications services, including broadband
        access to Internet via cable modems.
        As you know, the cable industry has obligations to protect consumer
        privacy that are contained in Section 631 of the Communications Act
        (47 U.S.C. 551). It is clear that in enacting Section 631, Congress
        intended to place a high priority on consumer privacy and for that
        reason the applicability of Section 631 is very broad. The general
        requirement of Section 631 is that cable operators obtain "prior
        written or electronic consent" in order to utilize any personal
        information gathered from subscribers. These privacy obligations,
        however, are not limited to personal information gathered through a
        customers use of a "cable service." Rather, the privacy requirements
        of Section 631 apply to "any wire or radio communications service
        provided using any of the facilities" of the cable system, not solely
        a consumer's use of cable service.
        As part of the order by which the Federal Communications Commission
        (FCC) approved AOL-Time Warner merger last year, the FCC reiterated
        that, with limited exceptions, a "cable operator may not use the cable
        system to collect personally identifiable information nor may the
        cable operator disclose personally identifiable information without
        the prior
        Mr. Brian Roberts
        February 13, 2002
        Page Two
        written or electronic consent of the subscriber." As part of the
        order, the FCC required AOL-TW to certify compliance with the legal
        privacy obligations contained in the law. (From AOL-TW Merger FCC
        Order (CS Docket 00-30), adopted 1/11/01, released 1/22/01, paragraphs
        I would greatly appreciate your response at the earliest opportunity.
        I also respectfully request a clarification of Comcast's current
        policy for collection and use of subscriber information and Comcast's
        position as to whether it intends to provide consumers of its
        telecommunications services, such as its cable modem service, with the
        right to affirmatively grant consent to data collection and use
        consistent with the consumer privacy requirements placed upon cable
        operators embodied in Section 631 of the Communications Act. I thank
        you in advance for your time and attention to this matter. If you have
        any questions with respect to these issues or my comments please feel
        free to call me or have your staff contact Colin Crowell in my office
        at (202) 225-2836.
          Edward J. Markey
          Ranking Democrat
          House Subcommittee on
          Telecommunications and the Internet
        Except as provided in paragraph (2), a cable operator shall not use
        the cable system to collect personally identifiable information
        concerning any subscriber without the prior written or electronic
        consent of the subscriber concerned.
        A cable operator may use the cable system to collect such information
        in order to -
        obtain information necessary to render a cable service or other
        service provided by the cable operator to the subscriber; or
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