Transport and Tracking

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Susan P. Crawford

March 2009

Disclaimer: The opinions expressed in this document are those of the author(s) and do not necessarily reflect those of the Office of the Privacy Commissioner of Canada.

Note: This essay was contributed by the author to the Office of the Privacy Commissioner of Canada's Deep Packet Inspection Project

The idea that general purpose communications networks should be subject to special obligations, and that those obligations are understood to benefit the rest of society, has a long and distinguished history. For more than a hundred years, policymakers subjected these networks – think post, telegraph, and telephone – to obligations not to discriminate among communications and to keep their customers’ information private . (I call these networks “general purpose” to distinguish them from networks dedicated to one-to-many broadcasts, like television, cable, and satellite.)

The successor general purpose network is Internet access. It’s replacing the telephone and the post. Just as Western Union finally sent its last telegraph in February 2006, these older general purpose networks will become extinct someday. This won’t happen for a while; the pace of telecommunications modality extinction is glacial. But no one can deny that Internet access is now essential to modern communications.

Somehow we’ve forgotten the close traditional relationship between basic communications and the functions of the state itself. The key reason that basic communications (and basic transport) were subject to nondiscrimination and privacy obligations was that these pieces of social infrastructure were closely associated with sovereigns. True, states may initially have gotten involved with transport and communications networks (even if the state was not providing the network itself) to ensure that the state’s communications and vehicles could move smoothly and swiftly across its territory in the service of national security and law enforcement interests. After this self-protective priority was ensured, a second role of the state – ensuring equal access to essential physical utilities and services and making sure that users’ information was treated with respect – became operative.

Over the last five years or so, this basic set of social requirements for general purpose U.S. networks has been thrown overboard. Through definitional legerdemain and a certain amount of judicial gullibility, we’ve ended up treating Internet access as if it was a Broadway show: privately controlled, content-driven, and subject to no particular social demands. And we have very few of these shows running at this point; most people have few choices of providers, prices are high, speeds are slow, and Internet access is inseparably bundled with several other “services.”

One important element of social policy that has been jettisoned along the way concerns the treatment of user data. In the telephone world, Section 222 of the Communications Act prohibited carriers from using consumer information for marketing purposes. Period. Now those same carriers are providing Internet access, and with the FCC’s help they have freed themselves of the strictures of Section 222. They can plumb the depths of packets, use the resulting data to target advertising, copy all data and shunt it off to other companies, prioritize streams of traffic based on what users are doing, and pull whatever stunts they feel like in terms of DNS redirection.

Thus, the two central social obligations that we used to impose on general purpose network providers – nondiscrimination and confidential treatment of user data – have been completely undermined by the private, highly concentrated operators of Internet access.

Network operators are taking the view that disclosure of their practices will address and resolve any possible consumer protection issues. They’re saying that as long as a consumer has been told what is going on, all is well. They’re also saying that they are doing the same kinds of things that free Web applications (like Yahoo! and Google) have been doing for years.

Every essay of this sort can make only one point, and here is the point of this piece: Transport is not the same thing as the vehicle using that transport. The providers of Internet access should be treated like the basic, general purpose actors they are. In particular, they should not be permitted to use subscriber data for their own business purposes. Acting otherwise confounds consumer expectations and runs counter to more than a hundred years of basic communications understandings. Remember, this is fundamentally the role of the state we’re talking about. Add in the crucial role of general purpose networks for economic growth and innovation, and you have some powerful arguments against network level deep packet inspection.

The idea of separation between transport and “other” is taken quite seriously in other corners of the world. For example, Singapore, the city of Amsterdam, and the city of Stockholm have all required fiber networks to be architected along passive, open access lines. Any company can come and install electronics in those fibers, and competition is fierce. The European Commission’s Information Society and Media department, led by Commissioner Viviane Reding, has recently released a paper calling for this kind of open access approach to Internet connectivity. Separation and non-discrimination both militate against allowing deep packet inspection by network providers.

Network providers would like us all to muddle along in the weeds of disclosure details, but DPI presents a much more fundamental issue: What should the providers of general purpose network access be permitted to do as a social and economic policy matter? For me, the answer is clear. They should be required to stick to the business of transport.

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