Some might immediately assert that the distinction establishes a space where government interests cannot easily intrude, and that the private domain is where individuals develop themselves while hidden from the nation-state’s coercive gaze. When we can speak privately and associate off-the-record we can more easily develop friendships that we might have otherwise shied away from. Moreover, without this private space individuals might not be comfortable talking to one another about radical political, ethical, or cultural issues – if the state could be recording our discussions, then we would have to evaluate whether or not we really wanted to discuss topics such as the value of overthrowing the present government, the importance of weakening the authorities’ scopes of legitimate action, or the value of weakening national rhetoric in favour of plurality.
While there have been clashes about where the division between public and private should be, those clashes often relate to where a line should be drawn rather than about abolishing the line entirely. Some, of course, insist that the public and private are mere phantasms, and that they only exist because we perpetuate a myths of their existence, but for this position to gain traction it must grapple with the necessary co-originality of public and private that is revealed in an examination of the nation-state’s founding. Feminists (accurately) focus on the harms that the strict division between public and private have caused, such as the suppression of women’s issues and the criminal discrimination against women and their labours, but this demonstrates that there is a porous boundary between public and private that must be examined rather than asserting that it absolutely does not exist.
Since the turn of the 19th century countries in North America have been increasingly concerned with how individuals’ private affairs can remain private. This has led to groups and individuals working to protect citizens from overzealous investigations and unwanted publicity. These attempts have been as successful as the translation of constitutional values onto new technological mediums – there have been cases where the law has protected individuals’ privacy more successfully than in other cases. Regardless, the general intend has (generally) been to preserve constitutional values in the face of technological change.
The digital millennium has brought with it new frontiers for law to navigate, new challenges for privacy advocates overcome, and the need for new governmental regulations to establish well discussed and well considered social and legal norms. Whereas the ‘net was initially seen as a euphoric environment where national laws could not constrain its inhabitants, subsequent events have demonstrated the hollowness of these early notions of cyberspace. As demonstrated in the repeated actions of Australia, the United States of America, Germany, France, Brazil, and other nations, law can effectively limit anonymity and speech in digital environments by targeting local service providers. The ‘net is only as free as governments choose to let it.
Of course, the argument can be made that for every countermeasure deployed by the nation-state, savvy individuals can evade surveillance and punishment by deploying their own electronic countermeasures and by engaging in ‘mixing’. They can use Internet browsers that are designed to encrypt all data, they can use dark-nets to communicate, they can use proxy servers, and they can secretly infiltrate digital communications networks to transmit their data on the backsides of other data transfers. Another potent means of evading detection involves ‘mixing’, or associating illicit or illegal content with condoned content to the extent that to effectively ban disliked content would cost the nation content that it wanted to spread in digital environments.
These countermeasures and counter-countermeasures are developed and deployed daily, but their advanced use is beyond the comprehension and technical capability of most users. Deploying counter-countermeasures has recently become even harder for those ‘regular users’ because of deep packet inspection (DPI) hardware. To help us understand this technology, we can turn to Ars Technica;
The “deep” in deep packet inspection refers to the fact that these boxes don’t simply look at the header information as packets pass through them. Rather, they move beyond the IP and TCP header information to look at the payload of the packet. The goal is to identify the applications being used on the network, but some of these devices can go much further; those from a company like Narus, for instance, can look inside all traffic from a specific IP address, pick out the HTTP traffic, then drill even further down to capture only traffic headed to and from Gmail, and can even reassemble e-mails as they are typed out by the user. (Source)
This has an important effect: it allows Internet Service Providers (ISPs, such as Shaw, Rogers, Bell, and AT&T) to identify what exactly being transmitted along their network: it enables them to (in real time) identify what is being written in an email being composed in Microsoft’s Hotmail or an instant message being transmitted to a friend, or listen to a conversation happening over Skype. This information could be stored in corporate databases if and only if they were flagged as ‘questionable’ or ‘illegal’ according to governmental laws and regulations, and subsequently be transferred to the authorities. Suddenly joking about how great it would be to toss a pie in the Prime Minister’s face isn’t quite as safe as it used to be, nor is sharing a hot new track of music or even talking about sharing a track of music. The private vanishes, and all that is performed online becomes potentially public. While the providers of DPI technologies insist that they are providing individual packet inspection rather than packet flow inspection. That said, the step to flow inspection isn’t far. I guess it doesn’t matter though because, as the age old argument goes, if you’re never doing anything that could ever be possibly thought of as questionable or illegal, no one would mind having this technology deployed. The same would be be true if corporate agents were hired by the government to follow every person around, and monitor everything that a person did, said, didn’t say, and didn’t do – there would be no public outcry, because nothing has anything they see as personally shameful that they perform on a daily basis. Right?
DPI itself is raises concerns because it lets ISPs filter and discriminate against packets without letting the consumers know about the discrimination while simultaneously benefiting their partners’ digital services. Thus it becomes much easier for Yahoo! to have faster search speeds on networks that it has signed contracts with (such as Rogers) at the expense of Google’s traffic. Different search engines have different search algorithms, index sites differently, and actually list some websites that other engines do not. By discriminating against search technologies, it becomes possible to slowly alter the flow of information and create information cocoons – once people get used to finding certain sorts of data, that becomes the norm, and all other data is immediately suspect regardless of its legitimacy. This is search engines – imagine if CBC or CNN or Agence France was a preferred partner – using DPI people could get caught into news cocoons, and thus limit the scope of public debate on national and international matters.
DPI threatens to change the relationship of public and private spaces. In addition to monitoring what people are doing over digital networks, DPI technologies allow for information mediation by privileging some services over others, which runs the risk of artificially changing the development of interpersonal discourse as a result of corporate interference. DPI technologies not only exist, but they are already deployed. The colonization of private zones of speech is accelerating as quickly as analogue systems are being digitized – the job now is to find new privacy archetypes that can guide laws and resist the process of colonization before it is too late.