[Note – I preface this with the following: I am not a lawyer, and what follows is a non-lawyer’s ruminations of how the Supreme Court’s thoughts on reasonable expectations to privacy intersect with what deep packet inspection (DPI) can potentially do. This is not meant to be a detailed examination of particular network appliances with particular characteristics, but much, much more general in nature.]
Whereas Kyllo v. United Statessaw the US Supreme Court assert that thermal-imaging devices, when directed towards citizens’ homes, did constitute an invasion of citizens’ privacy, the corresponding Canadian case (R. v. Tessling) saw the Supreme Court assert that RCMP thermal imaging devices did not violate Canadians’ Section 8 Chart rights (“Everyone has the right to be secure against unreasonable search or seizure”). The Court’s conclusions emphasized information privacy interests at the expense of normative expectations – thermal information, on its own, was practically ‘meaningless’ – which has led Ian Kerr and Jena McGill to worry that informational understandings of privacy invoke:
There are worries that Internet Service Providers (ISPs) may inject intelligence into their networks to try and unfairly differentiate their services from competitors’. Time Warner’s recently reformed End User Licensing Agreement (EULA) may be the most recent demonstration of this kind of differentiation. The EULA recognizes a difference between third-party video streaming, and streaming content from Time Warner’s own network spaces, and authorizes Time Warner to:
Immanuel Kant’s essay “On the Common Saying: ‘This May be True in Theory, but it does not Apply in Practice'” argues that theory is central to understanding the world around us and that, moreover, attempts to say that ‘theory doesn’t apply to the world as such’ are generally misguided. Part of the reason that Kant can so firmly advocate that theory and reality are co-original emerge from his monological rationalism, but at the same time time we see him argue that the clearest way to bring theory and practice into alignment is with more theory – rather than adopting ‘parsimonious’ explanations of the world we would be better off to develop rigorous and detailed accounts of the world.
Parsimony seems to be a popular term in the social sciences; it lets researchers develop concise theories that can be applied to particular situations, lets them isolate and speak about particular variables, and lends itself to broad(er) public accessibility of the theory in question. At the same time, theorists critique many such parsimonious accounts because they commonly fail to offer full explanations of social phenomena!
The complexity of privacy issues in combination with a desire for parsimony has been a confounding issue for privacy theorists. Nailing down what ‘privacy’ actually refers to has been, and continues to be, a nightmarish task insofar as almost every definition has some limiting factor. This problem is (to my mind) compounded when you enter online, or digital, environments where developing a complete understanding of how data flows across systems, what technical languages’ demands underlie data processing systems, and developing a comprehensive account of confidentiality and trust, are all incredibly challenging and yet essential for theorization. This is especially true when we think of a packet as being like post card (potentially one with its content encrypted) – in theory anyone could be capturing and analyzing packet streams and data that is held on foreign servers.
ICO is an independent body, and it would not be appropriate for the Government to second guess its decisions. However, ICO has been clear that it will be monitoring closely all progress on this issue, and in particular any future use of Phorm’s technology. They will ensure that any such future use is done in a lawful, appropriate and transparent manner, and that consumers’ rights are fully protected (Source).
Indeed, Phorm assert that their system has been designed specifically to allow the appropriate targeting of adverts whilst rigorously protecting the privacy of web users. They clearly recognise the need to address the concerns raised by a number of individuals and organisations including the Open Rights Group (Source).
The Canadian SIGINT Summaries includes downloadable copies, along with summary, publication, and original source information, of leaked CSE documents.
Parsons, Christopher; and Molnar, Adam. (2021). “Horizontal Accountability and Signals Intelligence: Lesson Drawing from Annual Electronic Surveillance Reports,” David Murakami Wood and David Lyon (Eds.), Big Data Surveillance and Security Intelligence: The Canadian Case.
Parsons, Christopher. (2015). “Stuck on the Agenda: Drawing lessons from the stagnation of ‘lawful access’ legislation in Canada,” Michael Geist (ed.), Law, Privacy and Surveillance in Canada in the Post-Snowden Era (Ottawa University Press).
Parsons, Christopher. (2015). “The Governance of Telecommunications Surveillance: How Opaque and Unaccountable Practices and Policies Threaten Canadians,” Telecom Transparency Project.
Parsons, Christopher. (2015). “Beyond the ATIP: New methods for interrogating state surveillance,” in Jamie Brownlee and Kevin Walby (Eds.), Access to Information and Social Justice (Arbeiter Ring Publishing).
Bennett, Colin; Parsons, Christopher; Molnar, Adam. (2014). “Forgetting and the right to be forgotten” in Serge Gutwirth et al. (Eds.), Reloading Data Protection: Multidisciplinary Insights and Contemporary Challenges.
Bennett, Colin, and Parsons, Christopher. (2013). “Privacy and Surveillance: The Multi-Disciplinary Literature on the Capture, Use, and Disclosure of Personal information in Cyberspace” in W. Dutton (Ed.), Oxford Handbook of Internet Studies.
McPhail, Brenda; Parsons, Christopher; Ferenbok, Joseph; Smith, Karen; and Clement, Andrew. (2013). “Identifying Canadians at the Border: ePassports and the 9/11 legacy,” in Canadian Journal of Law and Society 27(3).
Parsons, Christopher; Savirimuthu, Joseph; Wipond, Rob; McArthur, Kevin. (2012). “ANPR: Code and Rhetorics of Compliance,” in European Journal of Law and Technology 3(3).