Bob Dykes, CEO of NebuAd, was recently questioned at a House subcommittee meeting by Rep. Edward Markey (D – MA), chairman of the House Subcommittee on Telecommunications and the Internet. NebuAd is one of the advertising companies which use deep packet inspection (DPI) to examine the (unencrypted) web traffic of the customers of the internet service providers (ISPs) who partner with them.

Kansas-based ISP Embarq is one of NebuAd’s partners. At issue was a data-gathering test conducted earlier this year by NebuAd against 26,000 of Embarq’s customers.

Embarq did notify its customers about the test, noting that customer’s web surfing data would be retained, and that they could opt-out of the test if they wanted.

Rep. Markey encouraged Mr. Dykes to offer an opt-in model, instead of the current opt-in option.

“I think you’re forcing me into one of those ‘have you stopped beating your wife?’ questions,” Dykes responded then.

“Have you stopped beating the consumer?” Markey asked.

While consumers are generally informed about the use of DPI to examine their web traffic by an on-screen notice, or by a mailing to their home, most do not opt-out, so their web usage is tracked. For example, in Embarq’s test, only about 15 customers out of 26,000 opted out.

Mr. Dykes was also questioned at the same hearing by Rep. Bart Stupak (D-MI). Here’s the video:

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Takeaway: The debate over DPI is not merely academic, as this issue is being discussed in the US Congress. While it may be legal for NebuAd and other companies to use DPI technology to examine consumers’ individual web traffic, it remains to be seen whether they will re-tool their business model to allow consumers to “opt-in.”

Check your ISP’s current privacy policy to know whether you are subject to DPI, and how you can opt-out if you so choose.