Free Press Files Complaint with FCC Alleging that Comcast Is Violating 2005 Policy Statement

November 1, 2007. The Free Press (FP) and Public Knowledge (PK) filed with the Federal Communications Commission (FCC) a document [48 pages in PDF] captioned "Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".

Marvin Ammori and Julie Schwartz of the Free Press signed the complaint. The document includes six declarations in support of the complaint by Gigi Sohn and Jeffrey Pearlman (both of PK), Ben Scott and Adam Lynn (both of FP), Peter Eckersley (Electronic Frontier Foundation), and Robert Michael Topolski (who identifies no employment or affiliation).

The complaint alleges that Comcast is "degrading peer-to-peer protocols" by inserting forged reset packets into communications between peers in peer to peer (P2P) communications that terminate those communications. This, the complaint alleges, interferes with Comcast's subscribers use of applications like BitTorrent.

The complaint alleges that this violates a FCC 2005 Policy Statement.

The complaint requests an immediate ex parte preliminary injunction to "forbid from degrading any applications". It also requests a permanent injunction. Also, the complaint requests that the FCC fine Comcast $195,000 per "subscriber whose service was degraded".

The FP and PK are interest groups that advocate government imposed network neutrality mandates.

FCC Policy Statement. The FCC adopted its "Policy Statement" on August 5, 2005. See also, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text [3 pages in PDF] of this on September 23, 2005. See, story titled "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2007.

This Policy Statement provides, in part, that "To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice ... to run applications and use services of their choice, subject to the needs of law enforcement ... to connect their choice of legal devices that do not harm the network ... to competition among network providers, application and service providers, and content providers." (Footnotes omitted.)

The Policy Statement adds that "The principles we adopt are subject to reasonable network management."

This Policy Statement is FCC 05-151.

The FCC has not stated what a policy statement is, what its consequences are, or whether it creates any administrative enforcement procedure. Neither the Communications Act nor the Administrative Procedure Act contemplate regulation by policy statement. The FCC has promulgated no rules to implement this policy statement.

The House and Senate worked on broad telecommunications reform legislation in the 109th Congress. The House passed a bill on June 8, 2007, which provided that the FCC is authorized to enforce the 2005 policy statement. However, the Senate did not pass this bill. See, HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006" or COPE Act. See also, story titled "House Approves COPE Act, Without Network Neutrality Amendment" in TLJ Daily E-Mail Alert No. 1,388, June 9, 2007. And see, story titled "Amendment by Amendment Summary of Full Committee Mark Up of COPE Act" in TLJ Daily E-Mail Alert No. 1,360, April 28, 2006.

Summary of Complaint. The complaint alleges that "Comcast is violating the FCC’s Internet Policy Statement".

"Comcast is harming consumers", it alleges, "by violating three of the Policy Statement’s four principles", "to run applications and use services of their choice", "to access the lawful Internet content of their choice", and "to competition among network providers".

It alleges that "Comcast undermines users' ability to run applications and use services of their choice. Degrading applications that consumers want to use blocks consumers’ ability to ``run applications´´ of their choice. Consumers cannot properly run BitTorrent, Lotus Notes, FTP, and Gnutella because of Comcast’s actions." (Footnote omitted.)

It continues that "Comcast is harming consumers by undermining several valuable applications and services that consumers would choose to use. The FTP protocol is one of the Internet’s oldest protocols for sharing information. Lotus Notes provides telecommuters and businesses with email, calendar, and file-sharing services. BitTorrent also provides enormous, and increasing, consumer benefits."

The complaint provides this explanation of how BitTorrent works. "BitTorrent enables content consumers to quickly download large files. Cable and phone companies provide ``high-speed´´ Internet service that permits users to download content at far higher speeds than users can upload content. So, ordinarily, when one user downloads information from another user, as with peer-to-peer applications, the download cannot go faster than the uploader’s slower upload speed. For example, though the downloader might be able to receive content at 6 Mbps, the upload is providing the content at 200 Kbps. BitTorrent, however, enables the downloader to download pieces of a larger file from many different users simultaneously." (Footnote omitted.)

The complaint was filed with six declarations in support. One of these contains detailed allegations regarding how Comcast interferes with P2P applications such as BitTorrent.

Robert Michael Topolski wrote in his declaration in support that he is a software quality engineer who has been awarded Most Valuable Professional status in the area of networking by Microsoft.

He wrote that based on his research and tests he concludes that "Comcast is utilizing a device produced by Sandvine, Inc., in order to selectively cause disconnections on several P2P networks including Bittorrent, eDonkey, and Gnutella." He added that he has not tested "disconnections are affecting client/server protocols including FTP and Lotus Notes".

Sandvine states in its web site that "Sandvine's Policy Traffic Switch (PTS) Portfolio helps service providers to better profit from application traffic. Our Deep Packet Inspection-Based Policy Solutions address key challenges such as managing bandwidth-intensive traffic, controlling malicious threats, enabling new services and identifying application quality trends. These subscriber-friendly solutions are deployed on a single intelligent platform to simplify the network architecture and ensure a fast return on investment."

Topolski explained that "The P2P protocols I tested utilize the underlying Transmission Control Protocol (TCP). TCP's behavior is defined by the Internet standard document RFC 893. In a normal Internet connection TCP, connections between users can be terminated by one user sending the other a packet which contains either FIN or RST flag. A FIN packet indicates that the user is done with the connection, and after it is sent and received, both users close the connection. An RST packet is typically sent when an error (such as a computer crash) occurs and one user's computer no longer recognizes the connection the other user is attempting to communicate on. According to the RFC, when this happens, ``the data arriving ... is unacceptable because no such connection exists, so [the disconnected user] sends a RST. The RST is acceptable so [the other user] processes it and aborts the connection.´´ Thus, a computer receiving an RST packet will assume the remote computer has experienced an error and will abort the connection." (Parentheses and brackets in original.)

He further alleged that "When conditions determined by Comcast are met, the Sandvine device injects a forged RST/abort packet to each user. This packet is designed to impersonate and simulate an error by the other user, and as a result, the TCP stacks which handle incoming data each interpret the packet as an error condition on the other side and both drop the connection."

He also alleged that "The Sandvine devices only terminate connections when the Comcast user is initiating an upload to another user, and always terminate the connection at the same point in the protocol, indicating that Comcast are analyzing some of the content of the data passing between the Comcast user and the peer user."

Finally, he wrote that "using a network analysis tool called WireShark, I have verified that the forged RST packets do not originate from and are not seen by the side which is supposed to have sent them. These tests also indicate that the Sandvine device which monitors a given user's connections and injects these packets is located at that user's Cable Modem Termination System (CMTS), which is the location where the user's cable connection, along with that of others users in the area is terminated and converted into an internet connection.

Without reference to any responsive document filed by Comcast, Ben Scott, Policy Director of the Free Press, stated in a release that "Comcast's defense is bogus".

Markham Erickson, head of the Open Internet Coalition (OIC), stated in a release that "The FCC’s response ... will show Congress and the American people whether the Commission’s promises are for real, or not. We hope the FCC will back up its policy statements with immediate action, and take concrete steps to protect the Internet from arbitrary and anti-consumer restrictions by Comcast and other network operators."

Section 1030. The complaint does not allege unauthorized access to a protected computer system in violation of 18 U.S.C. § 1030.

Subsection 1030(a)(5) provides, in part, that "Whoever ... knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer ... or ... intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage; and ... caused ... loss to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value ... shall be punished ..."

The term "damage" is defined broadly to mean "any impairment to the integrity or availability of data, a program, a system, or information".

Also, the term "loss" is defined broadly to include "consequential damages incurred because of interruption of service".

The Department of Justice (DOJ) has invoked Section 1030 to prosecute based upon interference with internet connections. See, USA v. Ryan James Fisher, U.S. District Court for the District of Utah, D.C. No. 2:06 CR 00080 PGC.

The DOJ's theory in that case was that one small ISP owner sent "programs, information, codes" to customers of a competing small ISP, and that this created interference with Wi-Fi internet access, and caused users to loose connections. See also, story titled "Section 1030 and Wi-Fi" in TLJ Daily E-Mail Alert No. 1,514, January 5, 2007, and DOJ release.

The DOJ asserted that the $5,000 loss threshold was met for several reasons, including internet users' loss of service.