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

[Peter Fairbrother]

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).



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