Chapter 2 Answer guidance to end of chapter questions

The network of networks
  1. The design of TCP means that internet carriers including telecommunications companies and ISPs have no way of knowing what they are carrying. They might be carrying terrorist content, child abuse images, or even simply content in breach of copyright. They therefore cannot ever be liable for content carried across the network using the TCP protocol. Do you agree or disagree? Why?

To answer this question I would expect the student to discuss in order:

  1. The design of TCP and the nature of packets as closed “envelopes” which ISPs do not normally look inside. The analogy of container shipping may be used.
  2. The need for backbone internet content to be carried freely by ISPs and other telecommunication providers without risk.
  3. To describe the nature of end-to-end communications and discuss Saltzer, Reed, and Clark’s concept of intelligence of the network being found in its applications held at each end of the communication rather than in the network architecture itself.
  4. Hoe higher level protocols function on TCP, and the importance that higher level protocols can gain access to TCP without barriers and risk. This may involve a discussion of Yochai Benkler’s “Layers”.
  5. The open architecture design of the network that allowed Berners-Lee to develop HTTP and the World Wide Web.
  6. Discussion of the above suggests the network is a success precisely because we assume telecommunications companies have no such liability for content they carry as (as we shall see) provided for by the E-commerce Directive and s.230 of the Communications Decency Act. 
  1. The existence of an IP address, as part of the TCP/IP protocol, means that every device connected to the internet can be identified and tracked at any time. This means one’s correspondence can always be tracked and therefore the internet is incapable of complying with Art. 8 ECHR.


To answer this question I would expect the student to discuss in order:

  1. The role of the IP address as part of the addressing protocol. Students may wish to draw analogies to other addressing protocols such as a postal address.
  2. The availability of tools which allow you to mask your IP address such as VPNs or anonymity tool such as Tor. Students may note that currently in the UK it is not illegal to seek to mask your IP address using such tools.
  3. Students may note that IP addresses identify devices not individuals and it is individuals who benefit from Art.8 rights.
  4. Students may note that Art. 8 says “Everyone has the right to respect for his private and family life, his home and his correspondence.” The key here is “respect for”. It does not mean that routing data cannot be made publicly available.
  5. Issues which may raise Art.8 concerns is where either information destined for an IP address is examined, intercepted or interrogated on route to that IP address or when an IP address is used to identify an individual. Students may note there is evidence that both of these are ongoing. The TEMPORA and PRISM programmes seem to be doing to former while the process known as speculative invoicing (discussed at 11.2.7) sees the latter. In these questions it is important for the court to balance the Art.8(1) privacy interests of the individual against the wider Art.8(2) interests of the state and the wider community.
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