The Legality of Deep Packet Inspection

International Journal of Communications Law & Policy, No. 14 (2011)

12 Pages Posted: 22 Jun 2010 Last revised: 16 Mar 2014

See all articles by Angela Daly

Angela Daly

University of Dundee; University of Oxford - Magdalen College; Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Date Written: June 17, 2010

Abstract

Deep packet inspection is a technology which enables the examination of the content of information packets being sent over the Internet. The Internet was originally set up using “end-to-end connectivity” as part of its design, allowing nodes of the network to send packets to all other nodes of the network, without requiring intermediate network elements to maintain status information about the transmission. In this way, the Internet was created as a “dumb” network, with “intelligent” devices (such as personal computers) at the end or “last mile” of the network. The dumb network does not interfere with an application's operation, nor is it sensitive to the needs of an application, and as such it treats all information sent over it as (more or less) equal. Yet, deep packet inspection allows the examination of packets at places on the network which are not endpoints, In practice, this permits entities such as Internet service providers (ISPs) or governments to observe the content of the information being sent, and perhaps even manipulate it. Indeed, the existence and implementation of deep packet inspection may challenge profoundly the egalitarian and open character of the Internet.

This paper will firstly elaborate on what deep packet inspection is and how it works from a technological perspective, before going on to examine how it is being used in practice by governments and corporations. Legal problems have already been created by the use of deep packet inspection, which involve fundamental rights (especially of Internet users), such as freedom of expression and privacy, as well as more economic concerns, such as competition and copyright. These issues will be considered, and an assessment of the conformity of the use of deep packet inspection with law will be made. There will be a concentration on the use of deep packet inspection in European and North American jurisdictions, where it has already provoked debate, particularly in the context of discussions on net neutrality. This paper will also incorporate a more fundamental assessment of the values that are desirable for the Internet to respect and exhibit (such as openness, equality and neutrality), before concluding with the formulation of a legal and regulatory response to the use of this technology, in accordance with these values.

Keywords: deep packet inspection, net neutrality, US, EU, privacy, competition, free expression, privacy, copyright

JEL Classification: K42, K21, L86, L96, O33

Suggested Citation

Daly, Angela, The Legality of Deep Packet Inspection (June 17, 2010). International Journal of Communications Law & Policy, No. 14 (2011), Available at SSRN: https://ssrn.com/abstract=1628024 or http://dx.doi.org/10.2139/ssrn.1628024

Angela Daly (Contact Author)

University of Dundee ( email )

Dundee, Scotland DD1 4HN
United Kingdom

University of Oxford - Magdalen College ( email )

Magdalen College
Oxford, OX1 4AU
United Kingdom

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

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