Rage against the machine: does machine-to-machine communication fall within the scope of the confidentiality principle?

In this paper we confront the technological notion of machine-to-machine communication (M2M) to the legal principle of confidentiality of communications (art. 5.1 ePrivacy Directive) in order to determine whether M2M is a protected communication. After demonstrating the answer is not straightforwardly found in the legal text we turn our attention to other aspects which can have an impact on the matter. We build up our case by considering four different levels. At the first level we ask whether the concepts used in the legal definition of 'communication' allow for the inclusion of M2M. At the second level we involve the history of the ePrivacy Directive in the discussion. At the third level the values behind the confidentiality principle come into play. Lastly at the fourth level we look at the issue from a practical stance. The resulting picture points towards the inclusion of M2M in the scope of the confidentiality principle.