Continuing concerns about Phorm

RELEASE: 6 April 2008

The Foundation for Information Policy Research (FIPR) has responded to the Information Commissioner's Office (ICO) recent statement on the controversial behavioural advertising system developed by Phorm Inc.

The ICO has acknowledged that there was "considerable public concern" about the user profiling system, but their statement appeared to give the go-ahead for upcoming trials of the system by BT, the country's largest Internet Service Provider.

Nicholas Bohm, General Counsel for the Foundation for Information Policy Research, said:

"We are one of those organisations expressing deep concern. So far the Information Commissioner has neither acknowledged nor replied to our letter of 17 March, which raised serious and important issues.

"We now know that BT have already conducted secret trials of this technology, testing the effectiveness of snooping on their customers' Internet activities. They claim to have received extensive legal and other advice beforehand, but have failed to give the reasoning on which this advice is based.

"As we pointed out in our letter, the illegality stems not from breaching the Data Protection Act directly, but arises from the fact that the system intercepts Internet traffic. Interception is a serious offence, punishable by up to two years in prison. Almost incidentally, because the system is unlawful to operate, it cannot comply with Data Protection principles."

Richard Clayton, FIPR's Treasurer, and author of a recent technical analysis of Phorm's technology, said:

"Phorm have accepted the accuracy of my detailed write-up of the way their system works. Examining the detail makes it crystal clear that our earlier letter came to the right conclusion. Website data is being intercepted. The law of the land forbids this."

Nicholas Bohm added:

"BT now say they will no longer monitor their customers' web browsing without their express permission, but they appear to ignore the fact that they can only legalise their activity by getting express permission not just from their customers, but also from the web hosts whose pages they intercept, and from the third parties who communicate with their customers through web-based email, forums or social-networking sites.

"We sincerely hope that the Information Commissioner will reconsider what appears to be a green light for lawbreaking."

CONTACTS

Nicholas Bohm
General Counsel, FIPR
01279 870285
nbohm AT ernest.net

Richard Clayton
Treasurer, FIPR
01223 763570
07887 794090
treasurer AT fipr.org

NOTES FOR EDITORS

1. The Foundation for Information Policy Research (http://www.fipr.org) is an independent body that studies the interaction between information technology and society. Its goal is to identify technical developments with significant social impact, commission and undertaken research into public policy alternatives, and promote public understanding and dialogue between technologists and policy- makers in the UK and Europe.
   
   
2. FIPR wrote to the Information Commissioner on 17th March arguing that Phorm's system involved illegal interception contrary to the Regulation of Investigatory Powers Act 2000.

   press release of 17th March: http://www.fipr.org/press/080317phorm.html

   and full text of the letter: http://www.fipr.org/080317icoletter.html

3. Richard Clayton's report:

   http://www.cl.cam.ac.uk/~rnc1/080404phorm.pdf

   The text was seen in draft by Phorm and the published version reflects their corrections.
   
   
4. The ICO's press release, issued on Friday 4th April, is at

   http://www.ico.gov.uk/upload/documents/pressreleases/2008/new_phorm_statement_040408.pdf