EC more PC than MPs over Phorm privacy

Sunday, April 19, 2009 7:20 | Filed in Technology

For the most part, the British public don’t like Phorm. The idea that everything you browse is sent to a third party in order to help tailor the advertising they serve to you based on your browsing history has upset people.

Maybe they don’t trust that the data will be sufficiently anonymised. Maybe they object to their browsing habits earning revenue for a third party without getting a cut themselves. Maybe they object to the idea that the companies working with Phorm will send data to Phorm without their consent or knowledge. Maybe they object to the idea that even if they do opt out, their browsing history will still be sent to Phorm, only Phorm have said that they won’t do anything with it.

Phorm have also shown that they are quite prepared to use underhand methods to cover their tracks.

In early 2008 Phorm admitted editing the Phorm article on Wikipedia. Phorm admitted removing a quotation from The Guardian’s commercial executives describing the opposition they have towards its tracking system, and deleting a passage explaining how BT admitted misleading customers over covert Phorm trials in 2007

Wikipedia: Phorm (Editing of Wikipedia by Phorm)

Would you associate that sort of behaviour with deceit or with trustworthiness?

Then of course there is the possibility that what they are doing may actually be illegal. For a start, the Home Office have said that it is legal only if consent is given. Consent was not given, nor was anyone informed, about the first Phorm trials. That particular trial aside, the Information Commissioner’s Office made it clear that the ability to opt out is not sufficient to determine this consent.

Phorm must ask users to opt-in to its targeted advertising service for it to be legal, warns the Information Commissioner’s Office. “Phorm products will have to operate on an opt-in basis to use traffic data as part of the process of returning relevant targeted marketing to internet users”

PC Pro

And it is not just the person browsing. Those people who have websites are having the data which they would be sending to the browser intercepted by Phorm. The Foundation for Information Policy Research (fipr) have been explicitly clear on this:

The consent of those who host the web pages visited by a user is also required, since they communicate their pages to the user, as is the consent of those who send email to the user, since those who host web-based email services have no authority to consent to interception on their users’ behalf.

The need for both parties to consent to interception in order for it to be lawful is an extremely basic principle under RIPA, and it cannot be lightly ignored or treated as a technicality.

Open letter to the information commissioner from FIPR

So of course, a number of people think that this is illegal. What does the British Government do? Nothing. Until the European Commission asked them to respond, whereupon they promptly dragged their feet for a while before eventually responding…

The European Commission is analysing the government’s explanation of why UK authorites have taken no action over BT and Phorm’s allegedly illegal broadband wiretapping and ad-targeting experiments in 2006 and 2007.

A spokeswoman for Vivian Reding’s information society and media commission confirmed that a response to its call for information had been received in Brussels and would form part a “legal assessment” of the trials. The UK government’s letter was about a month and a half late, the EU having originally set a reply deadline of the end of July.

The Register: BT’s secret Phorm trials

And basically, the British government — while taking the position that the service needed to be opt-in by those browsing — said that it was otherwise pretty much okay. Only it would appear that some people think that they are not correctly applying the European legislation. And those “some people” happen to be the European Commission.

The European Commission has started legal action against Britain over the online advertising technology Phorm. [...] “We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of the EU rules on the confidentiality of communications.”

Ms Reding said Britain needed to to change its national laws to ensure there were proper sanctions to enforce EU confidentiality rules. Unless Britain complies, Ms Reding has the power to issue a final warning before taking the country to the 27-nation EU’s top court, the European Court of Justice. If it rules in favour of the European Commission, the court can force Britain to change its laws.

BBC News: EC starts legal action on Phorm

It has come to something when the UK government need legal action against them before they will enforce the rights of their citizens. Of course, it is not something which surprises me: UK governments are willing to deprive people of their liberties simply on a police say-so, without seemingly any come back for those who abuse this power.

Of course, this is the UK politisphere (well if you can have ‘blogosphere’, I don’t see why not) when the biggest focus is on personalities, not policies, on smears rather than substance, where, as the Disposable Heroes of Hiphoprisy lamented a long time ago…

it’s the perpetuation of the two-party system
where image takes precedence over wisdom
where sound bite politics are served
to the fast-food culture
where straight teeth in your mouth
are more important than the words
that come out of it

Disposable Heroes of Hiphoprisy: Television, the drug of the nation

It’s not just time for a new government, it’s time for a whole new kind of politics. Or perhaps we just get the politicians we deserve?

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7 Comments to EC more PC than MPs over Phorm privacy

  1. Jen says:

    April 19th, 2009 at 11:01 am

    I follow the news on this every week with a quick look through this Facebook group:

    Good info, thanks for posting it.


  2. JackP says:

    April 19th, 2009 at 11:55 am

    It’s also worth pointing out that when Phorm announce they will be going live, and they indicate how poeple can opt-out, that I will choose to opt out this domain, so that visitors browsing habits here are not passed to Phorm.

    Although I have yet to be made aware of Phorm’s mechanism for opting out, so I’ve not yet formally done so…

  3. paul canning says:

    April 20th, 2009 at 12:38 am

    Well if they’re editing their Wikipedia entry they’re joining a very long list

    I have a slight problem with this, namely how is web content to be paid for? Advertising, by and large. And targeted advertising is by far the most valuable for content creators.

    So it’s not just the likes of Phorm who may lose out if online advertising development is killed off.

    Be careful of what you wish for.

  4. JackP says:

    April 20th, 2009 at 6:02 am

    I don’t necessarily want targetted adverts killed off; I just want them killed off where people do not opt in to them. For example, Phorm were allegedly considering using some of their ad revenue to reduce people’s broadband bills by £1/month if you sign up (see the ‘incentives’ part of the wikipedia article)

    So if people wishing to opt-in gain a benefit, I don’t object to that. However as a website owner, I do object to my traffic being intercepted without ny permission.

    Advertising does not pay for – does not even come close to paying for – my costs, so from my own personal point of view, I am comfortable with this. I also worry about people who rely on the ‘great god advertising’ too much…

    Finally, I also think that there are better ways to target advertising (e.g. google ads) than by snooping on people’s browsing habits.

  5. Mike Cardwell says:

    April 20th, 2009 at 7:16 pm

    JackP: See for information on how I opted out my domain names

  6. JackP says:

    April 20th, 2009 at 9:15 pm

    Mike, great minds think alike and all that – I’ve been opting out of phorm today, and have already referenced your post in a blog entry to be published tomorrow…

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