The Foundation for Information Policy Research, an influential UK think-tank, has sent an open letter to the Information Commissioner, Richard Thomas, stating that the online advertising system Phorm is illegal in Britain. Hoorah, yippee and drinkies all round!
Phorm's pervasive, insidious and extremely controversial snooping system provides so-called "targeted" advertising by spying on an Internet user's web-browsing activities.
It works by trawling silently through websites visited by individual consumers and then matches keywords from the content of any given page to a "profile". Users are then "targeted" (bombarded is a more aptly descriptive word) with advertising allegedly relating directly to their "interests" – interests that have been identified by a surveillance program running in the background on websites that have signed-up to use Phorm's snooping technology.
It is to be deployed by three of the UK's biggest ISPs. BT, Talk Talk and Virgin Media, while others said to be "evaluating" the system include Orange, Sky and Tiscali. However, they (and others) may well have to reconsider their proposed deployment of a system that users have to "opt-out" of.
The system is a nasty agglomeration of covert surveillance and corporate greed. It has absolutely nothing to do with respecting the customer's rights to privacy and the confidentiality of data.
It is the view of the Foundation for Information Policy Research that Phorm's system would leave the ISPs open to class action suits and charges of processing data illegally. Furthermore, under Europe's comprehensive data protection laws, the use of such a system requires the explicit permission of individual customers using an "opt-in".
Even more significantly, the Foundation for Information Policy Research says "the Phorm system will be "intercepting" traffic within the meaning of Section 1 of the Regulation of Investigatory Powers Act 2000. In order for this to be lawful then permission is needed from not only the person making the web request BUT ALSO from the operator of the web site involved (and if it is a web-mail system, the sender of the email as well)."
The open letter a says that "although in some cases this permission can be assumed, in many other cases, it is explicitly NOT given -- making the Phorm system illegal to operate in the UK."
In a press release, Nicholas Bohm, the General Counsel of the Foundation for Information Policy Research writes, "The need for both parties to consent to interception in order for it to be lawful is an extremely basic principle within the legislation, and it cannot be lightly ignored or treated as a technicality. Even when the police are investigating as serious a crime as kidnapping, for example, and need to listen in to conversations between a family and the criminals, they must first obtain an authorisation under the relevant Act of Parliament: the consent of the family is not by itself sufficient to make their monitoring lawful."
Richard Clayton, the organisation's Treasurer, adds, "The Phorm system is highly intrusive – it's like the Post Office opening all my letters to see what I'm interested in, merely so that I can be sent a better class of junk mail. Not surprisingly, when you look closely, this activity turns out to be illegal. We hope that the Information Commissioner will take careful note of our analysis when he expresses his opinion upon the scheme."
Hear, hear!
The open letter also says, "The provision of this service depends on classifying Internet users to enable advertising to be targeted on their interests. Their interests are to be ascertained for this purpose by scanning and analysing the content of traffic between users and the websites they visit.
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