Magazine article Information Today

ISP Throttling Leads to Class Action Lawsuit

Magazine article Information Today

ISP Throttling Leads to Class Action Lawsuit

Article excerpt

The demand for bandwidth on the internet shows no signs of letting up. The internet is increasingly the go-to platform for Skype, LLC and other VoIP services and streaming media from YouTube; Netflix, Inc.; XFINITY; ABC/CBS/ NBC/FOX; and other content providers, as well as legitimate and not-so-legitimate peer-to-peer (P2P) downloading and file transfers.

Bandwidth on the internet is often thought of as a pipe, and the bigger this bandwidth pipe, the more content that can travel back and forth between servers and users. Many of the technological developments in the internet's infrastructure in recent years have been dedicated to increasing the size of the pipe to handle more content at faster speeds. From dial-up to DSL to cable to fiber optic, the pipe keeps getting bigger, but the demand keeps growing too.

Bandwidth is also costly. There is a reason that cable and fiber optic access are more expensive than dialup. It is costly to install, to maintain, and to upgrade. Most of the recent debate over Net Neutrality, which continues in both Congress and the Obama administration's Federal Communications Commission (FCC), is driven by the internet service provider (ISP) community because it wants to be able to price its access so that it can charge premiums for certain high bandwidth uses, offer discounts for low bandwidth uses, or prioritize uses to more effectively manage existing bandwidth.

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Computer Fraud and Abuse Act

However, there is a specific form of managing bandwidth that has one major ISP at the receiving end of a class action lawsuit for violations of the federal Computer Fraud and Abuse Act (CFAA). Time Warner Cable is being sued for its practice of "throttling" consumer use of its Road Runner internet service. (Throttling refers to efforts by ISPs to limit a subscriber's internet communications and access.) Two users, one in California and another in New York, claim that throttling has resulted in damage to their and other Road Runner customers' computers' functioning and was illegal access to their computers on the part of Time Warner. On Sept. 7, their lawsuit survived a critical test when the court denied Time Warner's motions to dismiss the case.

In the Time Warner case, the throttling was allegedly caused when the ISP sent forged reset packets to users' computers. Reset packets are used when an outgoing transmission is being blocked; the Transmission Control Protocol on the sending computer sends reset packets to shut down inbound internet connections and abort the outbound transmission. By sending forged reset packets to users' computers during times of high bandwidth use (particularly P2P file sharing and VoIP communications), the reset packets shut down P2P sharing and disconnect VoIP communications.

In their lawsuit, the plaintiffs claimed that these practices violated the federal CFAA. This act is primarily intended to address hacking and other activities that can harm computers, such as creating and distributing viruses, malware, denial-of-service attacks, and other forms of specific harm. Time Warner argued that even if the throttling activity alleged in the lawsuit was taking place, it does not constitute a violation of the CFAA.

Three Possible Offenses

In an extensive ruling on Sept. 7, a federal court in New York disagreed and held that throttling as described violated two sections of the CFAA. …

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