Law in the Internet Society

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JoshuaSimmonsPaper2ISPSideAdvertisingUnlikely 8 - 20 May 2009 - Main.JoshS
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ISP Side Advertising Unlikely

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 In response, both houses of Congress conducted hearings, and by September 3 NebuAd? was cracking under the pressure: its co-founder and CEO resigned, various ISPs either canceled or suspended trials of the device, and it fired its PR firm and some of its staff. Despite NebuAd? ’s collapse, however, broadcast providers are adamant that they should be allowed to regulate themselves and are “[not] prepared to embrace legislation.”
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While the media and congressional pressure seems to have quieted NebuAd? and its brethren for the moment, it is unlikely that deep packet inspection will ever truly be gone. The benefits to the corporate whores involved are too high, and the costs involved are all paid by consumers, most of whom have no meaningful choice when it comes to their ISP, and are far too willing to give up their privacy without thinking. When these companies return, they will not only face the same political pressure (unless, of course, they bribe Congress) and government regulator (of course, the FTC is fairly toothless), but legal claims, such as potential wiretapping charges. However, I see an additional hurdle for NebuAd? and its ISP stooges: copyright holders.
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While the media and congressional pressure has obliterated NebuAd? and quieted its brethren for the moment, it is unlikely that deep packet inspection will ever truly be gone. The benefits to the corporate whores involved are too high, and the costs involved are all paid by consumers, most of whom have no meaningful choice when it comes to their ISP, and are far too willing to give up their privacy without thinking. When these companies return, they will not only face the same political pressure (unless, of course, they bribe Congress) and government regulator (of course, the FTC is fairly toothless), but legal claims, such as potential wiretapping charges. However, I see an additional hurdle for NebuAd? and its ISP stooges: copyright holders.
 Copyright holders have been trying to hold ISPs secondarily liable for the infringement of the ISPs’ users for years. It was the prospect of such ruinous liability that urged the ISPs to lobby Congress for exemptions from copyright liability, and, in 1998, have Congress pass the Digital Millennium Copyright Act.
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 First, it is possible to construct two sets of arguments against ISP surveillance. The privacy-based arguments, such as wiretapping, have been discussed by privacy advocates, and are beyond the scope of this piece. However, one could construct a DMCA-based argument from 512(a)(4), which requires that transient storage be maintained “in a manner ordinarily [not] accessible to anyone other than anticipated recipients.” Providing NebuAd? copies of the material even for merely surveillance purposes would cause the ISPs copyright liability to reassert itself.
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Second, although products such as AdBlock? are able to block advertising, they do so based on links to aggregation websites (e.g., ad.adlegend.com, and googlesyndication.com). NebuAd? , on the other hand, resides inside the network, which means it can choose advertising without directing users to a centralized website, and can monitor clicks based on page views. From AdBlock? ’s perspective, these advertisements will simply look like regular content from the website’s author.

  • No. From AdBlock's perspective, the ads substituted by NebuAd will look like URIs for advertising content to be requested by the browser, as though they had been embedded in the HTTP stream sent to the user by the original ad server, which in some sense they were. In either event, the browser has to turn around and re-request these URIs, because that's what puts useful information in the server logs of the ad server. That request, however, is blocked by the proxy like Privoxy or the browser plug-in like AdBlock. From the user's point of view, the result is no ad in either case.
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Second, although products such as AdBlock? are able to block advertising, they do so based on links to aggregation websites (e.g., ad.adlegend.com, and googlesyndication.com). NebuAd? , on the other hand, resides inside the network, which means it can choose advertising without directing users to a centralized website, and can monitor clicks based on page views. If NebuAd? is able to make its advertising look like regular content from the website's author, AdBlock? will be unable to detect and block it. An example of advertisers circumventing AdBlock? is Google's latest trend of cycling the id tags for its text-based advertising. By doing so, some of Google's advertising slips through AdBlock? and is displayed until the user uses the Element Hiding Helper to block that tag, which is a temporary fix until the next rotation. It is important to note, however, that the same strategy would not work for image-based advertising.
 Without a change in the DMCA, which seems unlikely given Congress and the public’s reticence, ISPs would be opening themselves up to an unquantifiable legal risk by joining up with a NebuAd? -type company.
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  AdBlock to remove anyway.
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  • No. From AdBlock's perspective, the ads substituted by NebuAd will look like URIs for advertising content to be requested by the browser, as though they had been embedded in the HTTP stream sent to the user by the original ad server, which in some sense they were. In either event, the browser has to turn around and re-request these URIs, because that's what puts useful information in the server logs of the ad server. That request, however, is blocked by the proxy like Privoxy or the browser plug-in like AdBlock. From the user's point of view, the result is no ad in either case.

    • Doesn’t that depend on the nature of the advertising placed by NebuAd? ? If the advertiser wants to use images, I can understand it being difficult to obfuscate AdBlock? . However, if the advertising is text based like Google’s there would be no need to make a request from an advertising server to get the content. Right now you can use the Element Hiding Helper, but that requires the advertising to use the same tag name, which even Google has begun rotating so that some of its advertising will come through. As for needing the requests to put useful information in the server logs, if NebuAd? is sitting inside the network, why would it need a user to request URIs from its advertising servers? NebuAd? would be able to see where users were visiting and from what referring website.
 
 
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Revision 7r7 - 20 Apr 2009 - 20:59:57 - EbenMoglen
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