Intellectual Property Law

Personal Identifiable Information Collected by Cable Companies Providing Internet Services

By Martha L. Arias

Privacy is a significant issue for Internet users, and how such privacy is protected when cable companies provide Internet services is also a user's concern.  Phone companies have been traditionally providing Broadband Internet services and applicable regulations well address the issue of how these providers should protect users' privacy.  It is not clear, however, if cable companies providing Internet services are subject to regulations that protect users' privacy when those companies collect users' personal identifiable information. This article presents an example of an Internet cable subscriber who alleges violation of privacy by the cable operator.

In the case of Klimas v. Comcast Cable Communs., Inc., 465 F.3d 271, the Court of Appeals for the Sixth Circuit decided whether a cable operator violated 47 U.S.C.S § 551(b) of the Cable Communication Act of 1984 when collecting personal identifiable information concerning subscribers.  The district court dismissed plaintiff's claim.  Plaintiff subscriber appealed, and the appeal was dismissed.

47 U.S.C.S § 551(b) of the Cable Communication Act of 1984 provides that: "(1) 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.

(2) A cable operator may use the cable system to collect such information in order to (A) Obtain information necessary to render a cable service or other service provided by the cable operator to the subscriber; or (B) Detect unauthorized reception of cable communications."

The statute does not define "personal identifiable information" except in the negative.  47 U.S.C.A. § 551(a) (2) (A) says that the term "does not include any record of aggregate data which does not identify particular persons."

Plaintiff filed a class action against defendant cable company for violation of 47 U.S.C.S § 551(b) of the Cable Communication Act of 1984 (Cable Act). Plaintiff claimed that Comcast violated the Cable Act by collecting personal identifiable information concerning subscribers. Concretely, plaintiff claimed that Comcast collected users' Internet protocol (IP) addresses and their linkage to universal resource locators (URLs).   Plaintiff affirmed that Comcast collected "personally identifiable information sent to and from its Internet subscribers, including their Web surfing habits, where they visited, information they provided at Web sites and the like." In other words, plaintiff claimed that Comcast collected information leading to the identity of its subscriber and to their Web surfing habits. 

Comcast moved to dismiss, and the district court granted it.  The district court assumed that an IP address is always dynamic and held that "a dynamic IP address cannot constitute [personally identifiable information]" because "[d]ynamic IP addresses constantly change and unless an IP address is correlated to some other information, such as Comcast's log of IP addresses assigned to its subscribers . . ., it does not identify any single subscriber by itself."  This means that according to this district court, an IP address does not provide specific information about the subscriber.

Plaintiff appealed. The court of appeals dismissed the appeal, but based on different grounds.  The court of appeals held that because the plaintiff alleged that Comcast collected personal identifiable information by means of a system through which it provided Internet service, instead of cable service, the complaint did not state a claim under 47 U.S.C.S § 551(b) of the Cable Act. The court held that a cable service does not include broadband Internet service even when provided by a cable operator. The court was reluctant to apply the Cable Act to Internet services, even if those services are rendered by cable companies.  Therefore, according to this Sixth Circuit Court ruling, 47 U.S.C.A. § 551(a) (2) (A) of the Cable Act does not apply to broadband Internet services. 

In this case, the court of appeals recognized that the Federal Communications Commission (FCC) has abstained from deciding the issue of whether Internet services are telecommunication services regulated by the Cable Act or any other telecommunication act.  Indeed, the FCC supports the argument that Internet services are "informative services" and no telecommunication services.

Full post as published by IBLS Internet Law Blog on December 17, 2009 (boomark / email).