Here we explain why Comcast may end up in court defending its position. In fact, its customers may have a good chance to win their case.
who is Comcast?
a) 2nd largest Internet Service Provider (ISP) in the United States.
b) largest cable TV and cable Internet network provider in the United States,
c) duopoly or monopoly provider of residential broadband Internet access.
what is Comcast doing? - Comcast is forging traffic
packet forgery - stopping BitTorrent by injecting reset data packets into information streaming between two computers on the Comcast network. Then Comcast makes the reset packets appear to be from one of the computers using BitTorrent — not Comcast.
Accordingly, even if customers know to look for these reset packets, they will most likely believe the problem comes from the computer they are trying to share files with.
why is Comcast doing this?
It does help Comcast to cut down the amount of bandwidth used by clients. But it also offers the firm the opportunity to get a greater control about where users can get their movies. Bit Torrent has a deal with the Hollywood Studies that allows it to let consumers download movies without violating copyright. This means Bit Torrent is competing with Comcast for revenue from Comcast subscribers. Comcast is just one of many corporate gianst that is trying to protect its ecosystem, see below:
does the Comcast affair violate users’ rights
Proponents of network neutrality legislation point to Comcast’s P2P blocking to support their argument that the current regulatory system is not capable of providing consumers with sufficient protection from discriminatory network manipulation.
As we pointed out earlier, adequate and fair competition in the broadband market makes it less easy for Internet service providers to abuse their network control or face a consumer backlash
(see Ofcom UK study further below - competition works - but only if last mile has been deregulated successfully, U.S. seems to have failed on this score)
The US Criminal Code Title 18 Part 1 Title 47 Section 1030 covers - Fraud and Related Activity In Connection With Computers. Here are the relevant parts of the regulation - indented text from the statute:
Jursidiction: a Protected Computer is defined, amongst other things, as any computer
- which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.
Hence, if the computer is connected to the Internet, even if its outside the US, then it is a Protected Computer. That includes anything connected via Comcast, and anything that talks to any computer connected via Comcast.
there are two things to prove here:
1. That someone employed by Comcast
- 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.
Damage is defined as
- any impairment to the integrity or availability of data, a program, a system, or information.
A spoof RST packet instructs the receiving computer to drop a TCP connection, so it is a command that impairs the availability of data. The challenge will be to prove that these packets were sent intentionally.
2. That this action caused
- loss to 1 or more persons during any 1-year period […] aggregating at least $5,000 in value.
The term loss is defined as:
- any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.
Here one can assume that users do value their time and this interference does cause one to waste time. Euro 15 (about $25) seems reasonable = 250 Comcast users and the $5000 threshold has been reached.
There is also some evidence that Comcast inadvertently disrupted other protocols, including Lotus Notes and Windows Remote Desktop. These are used commercially and their disruption would have real financial impact. So while a detailed accounting remains to be done, it certainly looks likely that the $5,000 threshold has been reached.
what is the penalty in the U.S.
- a fine under this title or imprisonment for not more than 5 years, or both, [if] the offense was committed for purposes of commercial advantage or private financial gain.
Comcast’s attempts to block P2P protocols are prompted by their desire to keep costs down while seeming to offer an unrestricted service. That counts as commercial advantage.
So it certainly looks like a Section 1030 offense has been committed that could see someone put in jail for five years.
how doe this matter for Europe?
The FCC will have to respond to allegations regarding Comcast P2P blocking. The regulator’s response will indicate whether or not the current system has adequate safeguards.
The British regulatior OFCOM released a report recently. In it it showed that competition - especially on the last mile - assures lower prices. In a highly competitive market it is also less likely that unfair blocking as practiced by Comcost would be a wise strategy. In fact, it would likely result in a massive consumer backlash. Get a look at this report here:
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