The legality of deep packet inspection

Daly is concerned with how DPI could be used to harm Internet users. After briefly describing the technology, she notes its most commonplace uses: network security, government surveillance, network management, targeted advertising, and governing copyright infringement. The process by which these uses take place—the analysis of payload content of data packets—raises a series of legal issues. Specifically, examining the content of communications runs contra to the 4th Amendment rights in the United States and Article 8 of the European Convention on Human Rights that regulates the processing of personal data. Free expression is jeopardized because ISPs mediate communications based on protocol and packet analysis and prioritize certain expressions over others. Prioritization is closely related to competition worries, where ISPs might prioritize their own “legitimate” content services to the detriment of competitors who may be transmitting copyright infringing data to end-users.

Daly proposes a series of responses: ISPs should have to inform customers of how the technology is used, though she admits that simple disclosures do not necessarily eliminate privacy violations, competition worries, or other potential harmful uses of the technology. To address competition worries, ex ante rules may be required to avoid stifling innovation. Finally, to maintain a vigorous public sphere, governments might impose free speech requirements upon private communications networks to offset DPI systems’ potential censorial capacities.

Bibliographic information:

Daly, Angela. (2010). The legality of deep packet inspection. Presented at the First Interdisciplinary Workshop on Communications Policy and Regulation “Communications and Competition Law and Policy—Challenges of the New Decade.” Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1628024

If you’re interested in downloading Christopher Parsons’ full annotated bibliography about deep packet inspection, click here.

 

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About Christopher Parsons

Christopher is a PhD candidate in the Department of Political Science at the University of Victoria. He is currently attending to a particular set of technologies that facilitate digitally mediated surveillance, including Deep Packet Inspection (DPI), behavioral advertising, and mobile devices. He thinks through how these technologies influence citizens in their decision to openly express themselves or engage in self-censoring behavior on a regular basis. He blogs at Technology, Thoughts, and Trinkets and is @caparsons on Twitter.
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