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Gather data only for 'explicit and legitimate' purposes

Under the EU's Data Protection Directive organisations must ensure that they process personal data fairly and lawfully, and that it is collected for "specified, explicit and legitimate purposes" that are "adequate, relevant and not excessive in relation to the purposes".

Organisations must also ensure that any personal information they keep is "kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed," the Data Protection Directive states.

Hustinx said that regulatory guidance was needed and that it should determine "the inspection practices that are legitimate to ensure the smooth flow of traffic which may not require users' consent, such as, for example, the fight against spam.

"In addition to the intrusiveness of the monitoring applied, aspects such as, for example, the level of disturbance to the smooth flow of traffic that would otherwise occur, are relevant," he said.

Hustinx said the guidance should also explain to ISPs "which inspection techniques can be carried out for security purposes, which may not require users' consent" and explain "when monitoring requires individual's consent, notably the consent of all the users concerned, and the permissible technical parameters to ensure that the inspection technique does not entail processing of data that is not proportionate vis-à-vis its intended purposes".

Hustinx said that ISPs may need users' freely given, explicit, informed consent to conduct some inspection of their personal data when conducting some traffic management on their services, such as "to monitor and filter the communications of individuals for the purposes of limiting (or allowing) access to certain applications and services such as [file-sharing] and VoIP".

This consent can only be considered to be given if users take "affirmative action" to give it, Hustinx said.

"Consent must be free, explicit and informed. It should be indicated through an affirmative action," Hustinx said.

'Meaningful' consent

"These requirements put strong emphasis on the need to step up the efforts to ensure that individuals are properly informed, in a way that is direct, understandable and specific so that they can assess the effects of the practices and ultimately make an informed decision," he said. "Given the complexity of these techniques, giving meaningful prior information to users is one of the main challenges to obtain valid consent. Besides, there should be no detrimental consequences (including financial costs) towards users who do not consent to any monitoring."

ISPs must also consider whether it is proportionate to view personal information for the purposes of traffic management, Hustinx said.

"The proportionality principle plays a crucial role when ISPs engage in traffic management policies, whatever the legal ground for processing and the purpose: delivering the service, avoiding congestion or providing targeted subscriptions with or without access to certain services and applications," Hustinx said.

"This principle limits ISPs ability to engage in monitoring of the content of individual's communications that entail processing of excessive information or accruing benefits for ISPs only. What can logistically be performed by ISPs will depend on the level of intrusion of the techniques, the results required (for which they may accrue benefits) and the specific privacy and data protection safeguards applied. Prior to deploying inspection techniques, ISPs must engage in an assessment of whether these comply with the proportionality principle," he said.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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