[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 States saw 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:
The UK is in a bit of a bad row. According the BBC news site, today the Speaker of the Commons has stepped down, there is an Irish child abuse report coming due, and violence is rife in a failing prison. What hasn’t made BBC headlines, is that the Prime Minister’s office has made it clear that it will not look into British ISPs’ business arrangements with Phorm. After noting that the government is interested in shielding citizens’ privacy, the Prime Minister’s office notes,
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).
The Prime Minister’s office is unwilling to ‘second guess’ the ICO, and instead refers petitioners (there were about 21,000) to the ICO’s public statement about Phorm. In that publication (dated April 8, 2009), the ICO stated that that:
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).