[Infowarrior] - Paul Ohm: The Rise and Fall of Invasive ISP Surveillance

[Richard Forno]

The Rise and Fall of Invasive ISP Surveillance

Paul Ohm
University of Colorado Law School

August 30, 2008

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1261344

Abstract:

Nothing in society poses as grave a threat to privacy as the Internet  
Service Provider (ISP). ISPs carry their users' conversations,  
secrets, relationships, acts, and omissions. Until the very recent  
past, they had left most of these alone because they had lacked the  
tools to spy invasively, but with recent advances in eavesdropping  
technology, they can now spy on people in unprecedented ways.  
Meanwhile, advertisers and copyright owners have been tempting them to  
put their users' secrets up for sale, and judging from a recent flurry  
of reports, ISPs are giving in to the temptation and experimenting  
with new forms of spying. This is only the leading edge of a coming  
storm of unprecedented and invasive ISP surveillance.

This Article proposes an innovative new theory of communications  
privacy to help policymakers strike the proper balance between user  
privacy and ISP need. We cannot simply ban aggressive monitoring,  
because ISPs have legitimate reasons for scrutinizing communications  
on an Internet teeming with threats. Using this new theory,  
policymakers will be able to distinguish between an ISP's legitimate  
needs and mere desires.

In addition, this Article injects privacy into the network neutrality  
debate - a debate about who gets to control innovation on the  
Internet. Despite the thousands of pages that have already been  
written about the topic, nobody has recognized that we already enjoy  
mandatory network neutrality in the form of expansive wiretapping  
laws. The recognition of this idea will flip the status quo and  
reinvigorate a stagnant debate by introducing privacy and personal  
autonomy into a discussion that has only ever been about economics and  
innovation.

Keywords: privacy, Internet, cyberlaw, ISP, wiretap, charter, comcast,  
nebuad, phorm, network neutrality

JEL Classifications: K2, K29, K4, K41, K42
Working Paper Series
Date posted: August 31, 2008 ; Last revised: September 04, 2008