Here we go again - ISP DPI, but is it interception?

[Peter Fairbrother]

Peter Fairbrother wrote:
> James Firth wrote:
>> Just saw this on The Register today.  Talk Talk seem to me in the process
>> of developing an unavoidable network feature which tracks the websites a
>> subscriber visits with the aim of offering a malware protection service:
>>
>> http://www.theregister.co.uk/2010/07/26/talktalk_stalkstalk/
>>
>> Aside from the obvious legal question - does this amount to 
>> interception -
> 
> The only content they are making available is URLs, and insofar as these 
> are traffic data it's not interception. However URLs are not entirely 
> traffic data, and their modification of the network has are made the 
> parts of the URLs which are not traffic data available (to themselves) - 
> so yes, it's interception.
> 
> The other legal question is whether it's illegal interception or not. 
> Talk-talk are perhaps in a better position than Phorm were, as they can 
> argue that their action is necessary to protect the network, like email 
> virus or spam filtering.
> 
> However I don't know whether that would pass a Judge or not (if it ever 
> got to one).

Sorry. missed a bit here.

It would be lawful interception under 3(3) if it was being done "for 
purposes connected with the .. operation of that (telecommunications) 
service" - but I don't think it is.

It's certainly not necessary, as the network, and other networks, would 
work fine without it.

I think it's (purportedly) being done in order to provide a safer 
service, or an extra service on top of the simple telecomms service 
(passing bits), and thus 3(3) doesn't apply. Can't think of anything 
else which might make it lawful either.


> 
> 
> 
> Also, if the system fails to block some nasty content, can a parent sue 
> Talk-talk? If it blocks content it shouldn't, can the website sue 
> Talk-talk?
> 
> It has distinct negative implications for "pure-carrier" immunity.
> 
> Can a website say "I don't want to be examined by TalkTalk", something 
> comparable to the x-no-archive or NOARCHIVE tags? I'd think so, legally 
> if not always technically.
> 
> Suppose a "hidden" webpage has eg some copyright material on it, which 
> the customer has the right to access but Talk-Talk don't.
> 
> Suppose a site creates a new URL for each customer - Talk-talk are going 
> to access each page, thereby doubling the site's traffic. Can the site 
> sue for the extra traffic costs?
> 
> It's a can of works I'd not open.
> 
> 
>> Whilst one can see the obvious benefits to less technologically capable
>> subscribers, 
> 
> Perhaps you can - I cannot.
> 
> 
>> I'm not at all comfortable with this approach.
> 
> Nor am I.
> 
> I don't know why Talk-Talk (and the rest) have this urge to do things 
> with their customer's traffic, but they all seem to forget: it is their 
> customer's traffic, and not theirs.
> 
> -- Peter Fairbrother
> 
>