Charter's Web monitoring draws intervention from Capitol Hill

Two prominent members of the U.S. Congress are asking Charter Communications to hold off on its plan to monitor its customers' Web browsing and deliver relevant advertisements.

In a letter to Charter chief executive Neil Smit, Reps. Ed Markey and Joe Barton say the monitoring plan may violate federal privacy laws and ask that the company "not move forward" until "we have an opportunity to discuss" it. Markey is the Democratic chairman of a House Internet subcommittee and Barton is the senior Republican on the House Energy and Commerce committee.

Charter did not immediately respond on Friday to our questions about whether it would delay its monitoring-and-advertising plans as a result of the letter. Although Markey and Barton have no legal authority to order a halt, they could make life difficult for Charter by convening hearings and lambasting the company for alleged privacy violations.

Charter is planning a trial of what it calls an "anonymized" ad-delivery system for its customers, who are able to opt-out by setting cookies. In an interview with us on Thursday, a Charter executive said hardware from NebuAd would be placed on the company's network and allowed to monitor what URLs its customers visited.

The letter from Markey and Barton says that federal law regulating cable TV providers--Charter is the third-largest in the United States--may restrict its ability to monitor customers' activities with the intent of serving up more relevant advertisements. In other words, they argue that an opt-in mechanism is necessary instead of an opt-out one.

That section of federal law, 47 USC 551, says: "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." Charter has sent notices to customers who may be affected once the trial period begins, but a mere notification (that may never be seen) may not amount to actual consent.

Marc Rotenberg, director of the Electronic Privacy Information Center in Washington, D.C., says there's an even better argument that Charter would violate federal wiretapping laws because it wouldn't have obtained legally-valid consent from all customers. "I'm sure Charter will argue consent (was obtained)," Rotenberg said. "But I think they'll run into a very real problem in saying that people can grant consent to open-ended snooping on their communications when Congress has given broad privacy protections."