There are notable differences between the typical data gathering that individual Web sites conduct and those deploying deep-packet technologies in broadband networks, Rep. Edward Markey (D-Mass.) noted during a hearing on the impact of deep-packet technologies on consumers, Internet service providers, and the Internet.

"First, there is a distinction in the detail, type and amount of data collected," Markey said. "As opposed to individual Web sites that know certain information about visitors to its Web sites and affiliates, deep-packet inspection technologies can indicate every Web site a user visits and much more about a person's Web use," he said.

Anonymous Identifiers

Markey, whose subcommittee has direct jurisdiction over the Federal Communications Commission and providers of telecommunication services, noted that deep-packet technologies can used not only to target advertising based on a user's Web habits, but also to manage traffic on a network , detect network threats, and discover the presence of copyrighted or illegal material.

"As a result, these technologies raise not only significant privacy concerns but also highlight broader policy questions, including how they impact the evolution of the Internet itself and its future prospects for driving innovation and fostering competition and job creation," Markey said.

During this month's hearing, Markey and other subcommittee members grilled NebuAd CEO Robert Dykes about his company's Web monitoring service. Though Dykes said his company's technology does not gather personal information about individuals and translates the IP addresses it gathers into anonymous identifiers, committee members expressed concern that the electronic profiling of any individual's online activities is an invasion of privacy.

In particular, Dykes did not support an opt-in program that would give online users a clear choice at the start. An across-the-board opt-in program, he said, would cause "major harm" to the Internet, which today receives more than 50 percent of its funding from advertising. "Our position is well-supported, that we operate within the law," Dykes later told the Washington Post.

Presuming Silence Is Consent

NebuAd currently requires that individuals opt out of its program if they do not want to be tracked. However, Markey said this approach amounts to presuming that "silence is consent" for NebuAd to do whatever it wants with the information it gathers.

"I don't think, unless you've got clear affirmative permission, that you should be able to take this incredible leap into the breaching of the privacy of Americans," Markey said during the hearing, according to the Los Angeles Times.

Markey also indicated he believes ISPs deploying deep-packet technologies must adopt clear privacy policies. "In my view, consumers deserve, at a minimum, clear, conspicuous, and constructive notice about what broadband provider's use of deep-packet inspection will be; meaningful, 'opt-in' consent for such use; and no monitoring or data interception of those consumers who do not grant consent for such use," he said.