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Derived From: FCC Fact Sheet Cable Television (June 2000)

Cable operators generally are prohibited from using their cable systems to collect personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber. However, cable operators may collect this information if necessary to render cable television or other service to the subscriber or to detect unauthorized reception of cable communications.

Cable operators generally are also prohibited from disclosing personally identifiable information without the prior written or electronic consent of the subscriber. However, there are certain circumstances where the cable operator may do so. A cable operator may disclose this information if such disclosure is necessary to render, or conduct a legitimate business activity related to, cable television or other service provided to the subscriber. The operator may also disclose such information pursuant to a court order authorizing the disclosure, however, the subscriber must be notified of such an order by the person to whom the order is directed (such as a government agency or the cable operator). Finally, the cable operator may disclose the names and addresses of subscribers, but the cable operator must provide the subscriber the opportunity to prohibit or limit such disclosure. Moreover, the cable operator must ensure the disclosure does not reveal, directly or indirectly, the extent of any viewing or other use by the subscriber or the nature of any transaction made by the subscriber over the cable system.

At the time of entering into an agreement to provide cable service or any other service to a subscriber, cable operators must notify the subscriber of the following: the nature of any personally identifiable information collected, or that will be collected, regarding the subscriber; the nature of the use of such information; the nature, frequency, and purpose of any possible disclosure of such information; including an identification of the types of persons to whom the disclosure may be made, the period during which such information will be maintained by the cable operator, the times and place at which the subscriber may gain access to such information, and the limitations with respect to collection and disclosure of information by a cable operator and the right of subscribers to enforce these limitations. Notice to the subscriber must be in the form of a separate, written statement and must be clear and conspicuous. Notice must also be given at least once every year that the agreed upon service is provided. "Personally identifiable information" does not include any record of aggregate data which does not identify particular persons.

Cable operators must provide a subscriber access to all personally identifiable information regarding that subscriber. Such information must be made available to the subscriber at reasonable times and at a convenient place designated by the cable operator. The subscriber must be provided a reasonable opportunity to correct any error in such information. Cable operators must destroy personally identifiable information if such information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information.

Any person aggrieved by a cable operator's violation of these provisions may bring a civil action in a United States district court. As a remedy, the court may award actual damages, punitive damages, and reasonable attorneys' fees and other litigation costs reasonably incurred. A government entity may obtain personally identifiable information concerning a cable subscriber pursuant to a court order only if the entity offers clear and convincing evidence that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case. In addition, the subject of the information must be afforded the opportunity to appear and contest the entity's claim.

Derived From: CRS Privacy Law and Online Advertising, January 20, 2010

"It is also possible that privacy provisions of the Communications Act apply to agreements between cable operators acting as ISPs and online advertising providers. Section 631 of the Communications Act provides basic privacy protections for personally identifiable information gathered by cable operators. [Codified at 47 U.S.C. §551. It is important to note that those providing DSL Internet service over phone lines, such as Verizon or AT&T, would not be subject to the provisions of Section 631, because they are not cable operators. Testimony of Ms. Gigi B. SohnPDF, President, Public Knowledge, Broadband Providers and Consumer Privacy: Hearing Before the S. Comm. On Commerce, Science, and Transportation, 110th Cong. (2008)] Specifically, cable operators must provide notice to subscribers, informing them of the types of personally identifiable information the cable operator collects, how it is disclosed, how long it is kept, etc. 47 U.S.C. §551(a). Cable operators are prohibited from collecting personally identifiable information over the cable system without a subscriber's prior written or electronic consent. 47 U.S.C. §551(b). Cable operators are also forbidden to disclose personally identifiable information without prior written or electronic consent of subscribers and must take action to prevent unauthorized access to personally identifiable information by anyone other than the subscriber or cable operator. 47 U.S.C. §551(c). NebuAd has argued that Section 631 does not apply to the activities of cable operators when cable operators are acting as cable modem service providers.[Memorandum from NebuAd, Inc., Legal and Policy Issues Supporting NebuAd's Services at 6.]

"Section 631 governs the protection of information about subscribers to "any cable service or other service" provided by a cable operator. "Other service" is defined as "any wire or radio communications service provided using any of the facilities of a cable operator that are used in the provision of cable service." 47 U.S.C. §. §551(a)(2)(B). In its order classifying cable modem services as "information services," the FCC stated the belief that "cable modem service would be included in the category of 'other service' for the purposes of section 631."[In the Matter of Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, 17 FCC Rcd at 4854, ¶ 112.] Furthermore, in 1992, Congress added the term "other services" to Section 631 as part of the Cable Television and Consumer Protection and Competition Act. [P.L. 102-385] The House Conference Report on the law clarified that provisions redefining the term "other services" were included in order "to ensure that new communications services provided by cable operators are covered by the privacy protections" of Section 631. [H.Rept. 102-862.]

"Section 631 is judicially enforced, however, and it is for the courts to interpret the scope of its application absent more specific guidance from Congress. See 47 U.S.C. 551(f). It is unclear whether all of the provisions of Section 631 encompass Internet services. "Other services" have been interpreted by at least one district court to encompass Internet services. [See Application of the United States of America for an Order Pursuant to 18 U.S.C. Sec. 2703(D), 157 F. Supp. 2d 286, 291 (SDNY 2001) (finding that the notice requirement for the disclosure of personally identifiable information under 47 U.S.C. §551 included Internet services, except under 47 U.S.C. §551(h), which was exempt specifically from the broad definition of "other services").] On the other hand, in 2006, the Sixth Circuit Court of Appeals found that the plain language of Section 631(b) precluded its application to broadband Internet service. [Klimas v. Comcast Cable, Inc., 465 F.3d 271, 276 (6th Cir. 2006)]. Section 631(b) prohibits cable operators from using their cable systems to collect personally identifiable information without the consent of subscribers. 47 U.S.C. §551(b)(1). The court based its decision that Internet services were not covered by this prohibition on its interpretation of the definition of "cable systems." [Klimas, 465 F.3d at 276]. The court found that the systems that deliver Internet services are not the systems that Section 631(b) addresses, and therefore, cable operators were not prohibited by Section 631(b) from collecting personally identifiable information over systems that delivered Internet access services. The Supreme Court has yet to rule on this issue.

"Even if Section 631(b) does not prevent cable operators from collecting personally identifiable information over broadband Internet services, Section 631(c) may prohibit the disclosure of such information to third parties regardless of whether the information was collected over the cable system. 47 U.S.C. §551(c)(1). Section 631(c) of the Communications Act states that "a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator." 47 U.S.C. §551(c)(1). [Cable operators, however, may collect such information without consent for the purposes of obtaining information necessary to provide cable services or other services provided to the subscriber or to detect unauthorized reception of cable communications. Cable operators may disclose personally identifiable information without consent when it is necessary to render cable services or other services provided by the cable operator to the subscriber, pursuant to a valid court order, and in other limited circumstances. 47 U.S.C. 551 (c)(2). These exemptions do not appear to apply in this case.] If a cable operator, as an ISP, agrees to allow an online advertising provider to inspect traffic over its cable system and to acquire some of that information, it seems that the cable operator/ISP is disclosing information to the online advertising provider. Such disclosure would apparently be a violation of the Communications Act if (1) the information disclosed is personally identifiable information and (2) the cable operator/ISP is disclosing it without the prior written or electronic consent of the subscribers to whom the information pertains.

"Whether online advertising providers are gathering personally identifiable information in order to provide their services is a matter of much debate. Section 631 does not define what personally identifiable information is; it defines what personally identifiable information is not. According to 631, Personally Identifiable Information (PII) does not include "any record of aggregate data which does not identify particular persons." 47 U.S.C. §551(a)(2)(A). Online advertising providers claim that they do not collect any personally identifiable information. [See, e.g., NebuAd Testimony] Public interest groups and other commentators disagree, citing scenarios in which data which was not supposed to contain personally identifiable information was used to identify individuals. [See, e.g., CDT Testimony] Because Section 631 is judicially enforced, it is likely that whether online advertisers are acquiring personally identifiable information as opposed to aggregate data that do not identify particular persons will be a determination made by a federal trial court. To date, there have been no cases addressing this question.

"Assuming even that online advertising providers are gathering personally identifiable information, cable operators are allowed to disclose personally identifiable information as long as they obtain the prior written or electronic consent of the relevant subscribers, essentially an "opt-in" standard. 47 U.S.C. §551(c). In the event that online advertising companies are determined to be gathering personally identifiable information and that Section 631(c) applies to cable operators in their provision of cable modem services, cable operators would be required to obtain consent for such disclosure under an "opt-in" regime."

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Links

Law 47 USC § 551

(a) Notice to subscriber regarding personally identifiable information; definitions

(1) At the time of entering into an agreement to provide any cable service or other service to a subscriber and at least once a year thereafter, a cable operator shall provide notice in the form of a separate, written statement to such subscriber which clearly and conspicuously informs the subscriber of-

(A) the nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information;

(B) the nature, frequency, and purpose of any disclosure which may be made of such information, including an identification of the types of persons to whom the disclosure may be made;

(C) the period during which such information will be maintained by the cable operator;

(D) the times and place at which the subscriber may have access to such information in accordance with subsection (d) of this section; and

(E) the limitations provided by this section with respect to the collection and disclosure of information by a cable operator and the right of the subscriber under subsections (f) and (h) of this section to enforce such limitations.

In the case of subscribers who have entered into such an agreement before the effective date of this section, such notice shall be provided within 180 days of such date and at least once a year thereafter.

(2) For purposes of this section, other than subsection (h) of this section-

(A) the term "personally identifiable information" does not include any record of aggregate data which does not identify particular persons;

(B) the term "other service" includes any wire or radio communications service provided using any of the facilities of a cable operator that are used in the provision of cable service; and

(C) the term "cable operator" includes, in addition to persons within the definition of cable operator in section 522 of this title, any person who

(i) is owned or controlled by, or under common ownership or control with, a cable operator, and

(ii) provides any wire or radio communications service.

(b) Collection of personally identifiable information using cable system

(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.

(c) Disclosure of personally identifiable information

(1) Except as provided in paragraph (2), a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator.

(2) A cable operator may disclose such information if the disclosure is-

(A) necessary to render, or conduct a legitimate business activity related to, a cable service or other service provided by the cable operator to the subscriber;

(B) subject to subsection (h) of this section, made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed;

(C) a disclosure of the names and addresses of subscribers to any cable service or other service, if-

(i) the cable operator has provided the subscriber the opportunity to prohibit or limit such disclosure, and

(ii) the disclosure does not reveal, directly or indirectly, the-

(I) extent of any viewing or other use by the subscriber of a cable service or other service provided by the cable operator, or

(II) the nature of any transaction made by the subscriber over the cable system of the cable operator; or

(D) to a government entity as authorized under chapters 119, 121, or 206 of title 18 , except that such disclosure shall not include records revealing cable subscriber selection of video programming from a cable operator.

(d) Subscriber access to information A cable subscriber shall be provided access to all personally identifiable information regarding that subscriber which is collected and maintained by a cable operator. Such information shall be made available to the subscriber at reasonable times and at a convenient place designated by such cable operator. A cable subscriber shall be provided reasonable opportunity to correct any error in such information.

(e) Destruction of information A cable operator shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection (d) of this section or pursuant to a court order.

(f) Civil action in United States district court; damages; attorney's fees and costs; nonexclusive nature of remedy

(1) Any person aggrieved by any act of a cable operator in violation of this section may bring a civil action in a United States district court.

(2) The court may award-

(A) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(B) punitive damages; and

(C) reasonable attorneys' fees and other litigation costs reasonably incurred.

(3) The remedy provided by this section shall be in addition to any other lawful remedy available to a cable subscriber.

(g) Regulation by States or franchising authorities Nothing in this subchapter shall be construed to prohibit any State or any franchising authority from enacting or enforcing laws consistent with this section for the protection of subscriber privacy.

(h) Disclosure of information to governmental entity pursuant to court order Except as provided in subsection (c)(2)(D) of this section, a governmental entity may obtain personally identifiable information concerning a cable subscriber pursuant to a court order only if, in the court proceeding relevant to such court order-

(1) such entity offers clear and convincing evidence that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case; and

(2) the subject of the information is afforded the opportunity to appear and contest such entity's claim.

Caselaw

Klimas v. Comcast Cable Communications, Inc. No. 03-2012 (6th Cir. 2006) ("The plain language of § 551(b) indicates that its prohibition against the “collection of personally identifiable information using [a] cable system” is not applicable to information collected from the operation of a broadband internet service, even when operated by a cable company such as Comcast, because § 551(b), by its terms, applies only to a “cable system.” 47 U.S.C.A. § 551(b),(b)(1). Section 551(a) is broader, requiring notice of the collection of “personally identifiable information” to subscribers of “any cable service or other service,” 47 U.S.C.A. § 551(a)(1) (emphasis added), which arguably might cover broadband internet service. However, subsection (a)(2)(B) confines “other service” to certain facilities “used in the provision of cable service,” and subsection (a)(2)(A) excludes from the notice requirements “any record of aggregate data which does not identify particular persons.” 47 U.S.C.A. § 551(a)(2)(A),(B). There is no allegation that the information about internet activity collected in this case was actually correlated with subscriber lists so as to identify “particular persons.”")

Yershov v. Gannett Satellite Information Network, Inc., No. 15-1719 (1st Cir. April 29, 2016)

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