Behavioral Advertisement Regulation: How the Negative Perception of Deep Packet Inspection Technology May Be Limiting the Online Experience

I. INTRODUCTION II. DEEP PACKET INSPECTION TECHNOLOGY A. How Deep Packet Inspection Technology Works B. The Many Pieces of the DPI Puzzle C. The Issue du Jour--Behavioral Advertising D. Cookies and Deep Packet Inspection Technology--A Progression of Technologies E. The Courts--Applying Cookie Precedents 1. The DoubleClick Litigation 2. The Pharmatrak Litigation 3. Beyond Cookies--The Status of DPI Litigation Today F. A Proactive Approach--Regulatory Vehicles Applying to Behavioral Advertising 1. The FTC--A Light Regulatory Touch 2. Congress--A Heavy Regulatory Approach 3. Across the Pond--A Different Approach III. IN SEARCH OF A REGULATORY MIDDLE GROUND A. Looking at the Benefits B. Looking Past the Perception in Search of a Solution 1. A Clarification of Law 2. A Consent Regime 3. A Review of International Approaches 4. A Consistent Policy 5. A Review of the Public Policy Hurdles VI. CONCLUSION I. INTRODUCTION Like antibiotics, cars, and the microwave, the Internet has revolutionized the way people live. Over the last decade, the online community has become a day-to-day utility for the average person who, on any normal day, sends e-mails, makes calls, orders groceries, makes reservations, catches up on the news, and goes shopping. However, as technology becomes more advanced, the risks associated with it also increase. Laws must be carefully drafted to allow the continued development of technology while insuring that people are protected online. Policymakers who are fearful of the consequences of having personal information available online have made protecting that information a top priority. In their quest to limit information breaches online, government officials have recently focused on behavioral advertisements as the issue du jour. Behavioral advertising is a broad concept on the Internet, though, and defining what the government means by regulation in this space is complicated. Deep packet inspection technology (DPI) is one technology platform that is being used to provide behavioral advertising to online customers. Some policymakers believe that this technology should be regulated became they are fearful that the technology grants companies too much access to personal information online. In particular, these policymakers have raised concerns with the use of this information for creating behavioral advertising profiles. (1) Responding to the lack of U.S. law dealing with behavioral advertising, congressional leaders in the 110th and the 111th Congresses held hearings in both houses to learn about the technology and the regulatory issues that surround it. (2) The first hearings began during the summer of 2008. No direct legislation came of those hearings, but the sentiment of policymakers signaled a commitment to focus on this hot-button issue. The commitment was honored as more hearings on the issue took place throughout 2009. (3) Despite the fact that, at the time of publishing, no legislation had been filed, the chairman of the House Subcommittee on Communications, Technology, and the Internet, Rick Boucher, continues to list privacy legislation that focuses on this issue as one of his top priorities. (4) While protecting the personal information of Americans online should be a top priority, it is equally important to consider how regulation in this area may affect the future of the Internet and how too much regulation may harm the consumer. This Note asks how increasing regulatory barriers to limit online behavioral advertising could affect the consumer's experience online. To answer this question, this Note first looks at what DPI is, who uses it, and its purposes. Second, this Note discusses U.S. court decisions and policy decisions, as well as international business trials that relate to DPI and behavioral advertising practices. …