EU law and internet traffic control lost between privacy rights and freedom of individual and corporate enterprise

The European Union is facing a shift of legislative paradigm as far as cyberspace is concerned. Recent legislative movements in EU countries have sought to prosecute presumed illegal activities, mainly associated to file-sharing communities violating principles of intellectual property law. As the attempt to regulate and coordinate legislation on specific Internet abuses takes place, boundaries of privacy rights as they were previously understood are questioned. Yet, as France implements an independent authority with specific traffic monitoring powers and a generality of countries moves towards an additional taxation of physical devices considered as potentially promoting copyright violation activities, the ECJ, in its recent ruling in Case C-70/10 (Scarlet vs. SABAM), has precluded an injunction made against an Internet service provider which requires it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software, complying with special and particularly strict requirements, with a view to blocking the transfer of files the sharing of which infringes copyright. Such ruling deeply contributed to the establishment of a milestone on this enduring process as it is now secure that a general traffic monitoring filter cannot by applied by an ISP and at its costs. Moreover, the rationale of the decision had clear implications on two major areas of Law. On one hand, privacy rights are clearly at stake since traffic monitoring cannot, ab initio̧ distinguish licit from illicit traffic and will provide ground for multiple privacy violations and abuses if not carefully regulated. On the other hand, ISPs and industry companies are concerned as the costs, expenses and burdens of such monitoring are bound to run on their side. Nevertheless, several questions concern the audiovisual industry in particular and the community in general. How can illegal Internet activities - not only file sharing - be monitored? Who can monitor them? What can be defined as abusive vis-à-vis user's privacy? How far can the monitoring obligations go so that they do not become an excessive restraint on freedom of individual and corporate enterprise? The quest for privacy rights' defenders has just only begun. This paper contributes for the answer of the previous questions while it attempts to approach a technical and legal crossed analysis of traffic monitoring alternatives, seeking to determinate whether the current legal establishment allows room for such strict regulation, as the audiovisual industry desires, or if intellectual property defense must be sought after by some means other than traffic monitoring.