This document appears to sacrifice and commoditize youth by abridging the freedom of speech, and allowing unreasonable searches and seizures, in texting, millennials’ primary means of communication. It “protects” Americans from “robotext spamming by giving carriers ownership of all texts. It admits that it itself is an unnecessary measure, the rate of text spamming actually being so low.

“Protecting American Consumers from Spam Robotext Messages” removes the prohibition on carriers reading our phone texting. The document is also headed “Declaratory Ruling—WT Docket  08-7.” It was released on Thanksgiving Eve. It eliminates text privacy by “finding” (on page 8) that texting is “information services,” as opposed to “telecommunications services.”  This means “light-touch regulation” (p 25), and with no “ancillary” privacy rules (p 15) to soften the blow. Privacy rules for “telecommunications services,” on the other hand, are strict. It takes a judge to tap phone speaking. No longer,for phone texting. 

The document appears to invite the carrier to open, read, modify, delay, censor, block, copy, process and sell all private texts, including those to and from close friends, relatives, spouses, employers, companies, government agencies, and spiritual and health advisors. It doesn’t foresee that government social credit scores, like those in China, may arise from it, as an unintended consequence. 

Surprisingly, the document admits the American consumer doesn’t actually need FCC protection  from spam robotext messages. The text spam rate is only “estimated at 2.8%” (p 6). It is insensitive to First and Fourth Amendment issues: we don’t have freedom of speech, or even of thought, when someone’s computer is looking over our shoulder. 

The document claims that some messages that are temporarily undeliverable, and their “store-and-forward” nature makes them “inextricably intertwined” (p 11) with the carrier, and thus his property. The explanation is not helped by a circular definition of “information service” (p 2). The document apes carrier self-promotion, echoing a carrier’s phrase, “open the floodgates,” (p 8) in the authoritative text of its own declaration (p 20). It betrays an unwholesome interest in the young, texting being “their main method of communicating” (p 5).  It slights humble “pole attachment” rules (p 15) inpassing, forgetting that the poles are on public land. 99% of a wireless text’s journey is over the wires between towers, on public land, where the public has always had a right to require decent behavior. 

The document cites “competition” (p 23) as a remedy for those who seek privacy, but of course the carrier sees the text first, before it reaches the competitor’s private texting site. The document muddles the term “store and forward” (p 4), a term of art in telephony. In digital telephone switching, the “store” in message sorting, before it is “forwarded” to the right route, takes only a few thousandths of a second. This is why voice over IP works. But the document seems to rely on a vague understanding of term to argue that, because some texts are stored for later delivery when delivery is temporarily impossible, all texts are “inextricably entwined “ with the carrier, and thus his property. This line of thinking appears to leave the door open for more leisurely commercial storing of private data, for data mining, and political profiling. But innocent-sounding “filtering,” “scanning,” “account fingerprinting,” seeking “telltale signs” and compiling return addresses (p  6), all amount to the same thing, reading private data. The document does not mention that all these tricks of the trade, in modern systems, mean deep packet inspection. 

Deep packet inspection looks deeper into a message than than a messenger would ordinarily need to deliver it. It’s like the mail carrier opening your mail. Modern message sorters, called routers, now have deep packet inspection features that work on the fly, undetected, on hundreds of thousands of data steams simultaneously.  Deep packet inspection (DPI) is surely a fundamental technology, improper for a document like this to overlook. Unregulated modern DPI can convert ordinary, everyday spam filtering into data mining, a billion dollar business that the carriers envy.

The document should be set aside. It is unnecessary, according to the document itself, it aggressively takes up the cause of the carriers it was created to regulate, it affronts the Bill of Rights, and it attacks the young where they are most expressive.  

Thomas Dargan, Ph.D., Distinguished Member of Technical Staff, Verizon Labs (ret.), Adjunct Professor, NYU
106 Harbor Ln W
New Rochelle, NY 10805
914-319-4034
thomas.dargan@gmail.com
December 6, 2018