The Phorm storm in Britain has made the headlines a couple of times. The question on whether the system is even legal has gotten FIPR demanding the Home Office to retract certain comments they made where they suggest Phorm is actually legal. FIPR has made a detailed legal analysis that suggests quite the contrary.Last month, we here at ZeroPaid reported on the developments over Phorm. We followed up the report with another report earlier this month which points to Richard Clayton saying that Phorm is illegal, yet despite the comments, Phorm continued to be tested in the market. The, what seemed to be, cold shoulder from regulators didn't deter an additional commentary and call from the Foundation for Information Policy Research (FIPR) which suggests that the Home Office is misleadingly suggesting that Phorm is legal and didn't violate the Regulation of Investigatory Powers Act of 2000 (or RIPA). The Open Rights Group points us to a copy of the in-depth legal analysis sent to the Home Office recently. Among other things, the analysis states that such technology could develope quite a rap sheet in Britain: "This paper concludes that deployment by an ISP of the Phorm architecture will involve the following illegalities (for which ISPs will be primarily liable and for which Phorm Inc will be liable as an inciter):
It might be quite obvious, but probably one of the last things any company wants to do is open oneself up to litigation by a major bank - especially when the whole issue revolves around privacy. Here's some more highlights: Phorm’s public announcements go to great length to emphasise the anonymity it claims for its processes. These processes are embodied in software which is not open to inspection, either by the public or by the ISPs who will run the software, and Common sense apart, RIPA s16 happens to put the matter beyond doubt. It The process in all cases is as described in Clayton at 46 onwards. In the case of searches, the search terms sent by the user to a search engine are intercepted and analysed by the ISP using the Phorm system. This requires the consent of the provider of the search engine. Search engine providers derive revenue from advertisements based on their users’ searches and on their users’ selection from among search results, and they are in competition with Phorm for advertising revenues based on their customers’ activities. There is not the slightest basis for supposing that they consent to the interception of their customers’ communications with them, expressly or by implication, nor has any such basis There are a number of other significant points being made in this piece including a case where there was actually a complaint against Phorm. When the matter was referred to the Home Office, the Home Office actually responded saying that the matter wasn't their responsibility (paragraph 9). Basically, the entire paper shoots down Home Office's insinuation that Phorm is legal on just about every front. One might find the Home Office to be funny by the time they are done reading the analysis. The original note by the Home Office was posted in full last month. Among other things, the Home Office said: 18. It is arguable that a targeted online advertising service can be "connected with the provision or operation of [the ISP] service". The RIPA explanatory notes for section 3(3) state: "Subsection (3) authorises interception where it takes place for the purposes of providing or operating a postal or telecommunications service, or where any enactment relating to the use of a service is to be enforced. This might occur, for example, where the postal provider needs to open a postal item to determine the address of the sender because the recipient's address is unknown." Of course, anyone would consider an extra layer of ads sent from their ISP that they pay in the first place to be an "enhanced experience" much like e-mail filters. This is just like anti-spam filters which, if our memory serves us correctly, blocks unsolicited advertisements in the first place. Sarcasm aside, here's a few more highlights from the Home Office e-mail: 21. Where targeted online advertising is determined and delivered to a user's browser as a consequence of a proxy server monitoring a communication to download a web page, there may be monitoring of a communication in the course of its transmission. Consent of the ISPs' user and web page host would make that interception clearly lawful. The ISPs' users' consent can be obtained expressly by acceptance of suitable terms and conditions for the ISP service. The implied consent of a web page host (as indicated in paragraph 15 above) may stand in the absence of any specific express 22. Targeted online advertising undertaken with the highest regard to the respect for the privacy of ISPs' users and the protection of their personal data, and with the ISPs' users consent, expressed appropriately, is a legitimate business activity. The purpose of Chapter 1 of Part 1 of RIPA is not to inhibit legitimate business practice particularly in the telecommunications sector. Where advertising services meet those high One may wonder how scary this can be when an organization like this says right on their home page, "Working together to protect the public" The original Richard Clayton analysis can be found here. The Open Rights Group notes: FIPR want the Home Office to withdraw informal advice they issued in February, which FIPR say wrongly concluded the system is lawful, creating “an obstacle to the just enforcement of the law”. At the public meeting attended by Phorm and their critics last week, Simon Davies of 80/20 Thinking Ltd identified the legality of Phorm under RIPA as a legitimate issue, but urged participants not to get bogged down in a question which, in the end, can only be decided in a court of law. Hopefully, FIPR’s legal analysis will bring UK citizens one step closer to an answer to the question “Is Phorm legal?”. As Richard Clayton observes: |
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All jesting aside this is showing promise in Britain and may make the French wake up and smell the civil rights suits that could come their way...