Session 3: Securing our Internet Traffic This session will examine the legal, regulatory and policy issues related to the practice of routing Canadian domestic Internet traffic through the US. The session will examine the extent and consequences of the practice and alternatives to the practice.

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U.S. Regulation of Canadian
Internet Traffic
J.G. Harrington
September 24, 2015

2. u FCC Regulation
u Law Enforcement Issues
u National Security
u Miscellaneous
Topics

3. u General regulatory authority over communications matters at the
national level
u Covers interstate and foreign communication by wire or radio
u States can regulate intrastate services (not relevant here)
u Has asserted authority over Internet access services
u Hotly contested
FCC

4. u Direct power over common carriers
u Defined to cover transmission with no change in form or content
u Domestic and international service covered
u Historically, no direct regulation of Internet providers
u 1997 decision and later orders classified Internet access as an
“information service” not subject to common carrier regulation
The FCC’s Authority

5. u Classifies retail Internet access services as common carrier
services
u Must serve mass market end users and provide access to substantially
all of the Internet
u Excluded:
u Enterprise services
u Backbone and other wholesale services
u Services that use IP but do not provide access to the whole Internet
Impact of Network Neutrality Decision

6. u Most rules apply only when traffic originates or terminates in the
U.S.
u Providers do not need authorization for their traffic to transit the U.S. on
its way somewhere else
u If a U.S.-based transiting carrier is used, that carrier is subject to U.S.
rules
u Origination or termination requires FCC authorization
u Traffic can be deemed to originate or terminate in U.S. if it is handed off
to another carrier inside the country
FCC Regulation of Non-U.S. Traffic

7. u Entry/exit regulation
u Must obtain FCC authorization to provide international common carrier
services in U.S.
u Permission to exit market also required, but generally granted
automatically
u Regulated providers also subject to ongoing obligations
u Reporting
u Payment of fees and contributions
u Some exemptions for international-only providers
u Miscellaneous obligations
Specific FCC Requirements

8. u Rules do not apply to traffic transiting U.S.
u Potential issues concerning interconnection with content providers
and others possible in the future
u Also potential opportunities depending on how FCC decisions play out
Network Neutrality

9. u U.S. carriers are subject to significant law enforcement obligations
u Response to lawful process for surveillance and production of records
u CALEA – requires specific capabilities to comply with surveillance
requests
u These requirements will apply to underlying carriers used to transport
traffic across the U.S.
u Law enforcement issues often addressed in FCC authorization
process
Law Enforcement Issues

10. u U.S. national security agencies have broad powers to obtain access
to data transmitted internationally.
u Subject to authorization and legal review by special court
u Court has pushed back on occasion, but not often
u Typically no power over purely domestic U.S. traffic, but non-U.S.
traffic transiting the country is subject to surveillance
National Security

11. u Most U.S. content-related requirements apply only when U.S. end
users have access to content
u Copyright, trademark
u Defamation
u U.S. border crossings require State Department approval.
Miscellaneous

12. J.G. Harrington
Cooley LLP
1299 Pennsylvania Avenue, NW
Suite 700
Washington, DC 20004
+1 202/776-2818
jgharrington@cooley.com
Contact Information