Intellectual Property Law

Must Cable Companies Providing Internet Services Notify Subscribers of Personal Information Given to the Government in Criminal Investigations?

By Martha L. Arias

The United States 1984 Cable Act (CA) regulates provision of cable services.  At the time of its enactment, cable companies did not provide Internet services, as it is a common practice nowadays.  CA regulates cable and ?other services.? Whether Internet services rendered by cable companies are regulated by the CA is still a matter of debate, and opinions are split among United States district courts.  Congress is hushed still. Yet, lack of a concrete rule on this matter does not mean legal questions are not arising.  For instance, does a cable company providing Internet services have to notify subscribers when their personal information is given to government authorities conducting criminal investigations?      

The Electronic Communication Privacy Act, 18 U.S.C.S. § 2701 et seq. ?ECPA- is aimed at any provider of electronic communication services. This term is defined as the service that provides users with the ability to send or receive electronic or wire communications.  18 U.S.C.S. §§ 2510(15), 2711(1).  Case law and legal opinions clearly agree that ECPA applies to Internet communications. Indeed, ECPA ?applies to large-scale electronic mail operations, computer-to-computer data transmissions, cellular and cordless telephones, paging devices, and video teleconferencing.? In re United States, 157 F. Supp. 2d 286 (Dist. Ct. SDNY 2001).  Under ECPA, government authorities conducting criminal investigations may obtain a court order directing an electronic communication service provider to disclose subscribers? records when the government has reasonable grounds to believe that the information is relevant and material to the ongoing investigation. 18 U.S.C.S. § 2703(d). Government authorities requesting this information from service providers do not need to notify subscribers; likewise, service providers complying with these orders are exempted from liability for any claim related to this disclosure of personal information.  

The 1984 Cable Act (CA) requires cable companies to notify cable subscribers when their personal information is given to government authorities in the course of an investigation. Thus, the question is whether a cable company providing Internet services must notify subscribers when personal information is given to government authorities according to the CA; or whether ECPA?s provision mentioned above applies.  There is not absolute or clear-cut answer to this question yet. 

Cable companies providing Internet services do so through their cable system ?broadband capacity of hybrid fiber-optic/coaxial cable network. These companies do not use dial-up connections. CA contains a section dedicated to the protection of subscribers? privacy.  This section prohibits cable operators from disclosing subscribers? personal identifiable information.  This information may only be provided to a government entity when the subject of the information is suspected of engaging in criminal activity and the information sought is material evidence in the case.  Cable Act codified as 47 U.S.C. §§  551, 551(h), 551(h)(1).  Yet, the subject of that information must be afforded "the opportunity to appear and contest such entity's claim." 47 U.S.C. § 551(h)(2). Also 47 U.S.C. § 551(c)(2)(B) states that a cable operator may disclose subscribers? information pursuant to court order if the cable operator notifies subscriber of such order.   Thus, under the CA, cable companies must notify subscribers of personal identifiable information given to government entities pursuant to court orders. Hence, does this requirement apply to Internet services provided by these cable companies? 

Answer of this question varies among U.S. jurisdictions. For instance, New York courts hold that 47 U.S.C. § 551 ?regarding notification to subscribers- do not apply to Internet services provided by cable companies.  They hold that notification under this section applies to cable and other services not including Internet services.  Thus, ECPA is the federal act directly applied to these disclosures and as such, no notification to Internet cable subscribers is required when personal identifiable information is given to government authorities under criminal investigations.  In re United States, 157 F. Supp. 2d 286 (Dist. Ct. SDNY 2001).  It is worth to clarify that in this case, the court avoided ruling on whether CA applied to Internet connections provided by cable companies.  It merely decided the specific question at hand by ruling that disclosure to subscribers under the CA did not apply to Internet services provided by those companies. 

In re United States, the court quoted that two courts of appeals have reached the conclusion that the CA does not apply to Internet services; although those courts did not specifically addressed the disclosure provision. ?AT & T v. City of Portland, 216 F.3d 871, 877 (9th Cir. 2000) (local cable franchising authority could not require cable company to open access to its cable broadband network for competing internet service providers); Gulf Power Co. v. F.C.C., 208 F.3d 1263, 1279 (11th Cir. 2000) (FCC lacked authority to regulate rent to be paid by cable and telecommunications services providers for attachment of wires to power companies' poles), cert. granted on other grounds, 121 S. Ct. 879 (2001).? 

Therefore, by now, whether Internet cable companies must notify subscribers of personal identifiable information provided to government authorities is still an unsettled issue, and state jurisdiction answer is required.   

Full post as published by IBLS Internet Law Blog on July 19, 2009 (boomark / email).