"Home Office guidance misleading" says FIPR

RELEASE: 23 April 2008

The Foundation for Information Policy Research (FIPR) has today released the text of an open letter to Jacqui Smith, the Home Secretary, on the legality of Phorm Inc's proposal to provide targeted advertising by snooping on Internet users' web browsing. FIPR calls on the Home Secretary to withdraw her department's previous statement because it has become incomplete and misleading in the light of new technical and legal analysis of Phorm's system, and is an obstacle to the just enforcement of the law.

The letter explains that a technical note by Dr Richard Clayton, FIPR's Treasurer, and a legal analysis by Nicholas Bohm, its General Counsel, show that the operation of Phorm's systems involves:

• interception of communications, an offence contrary to section 1 of the Regulation of Investigatory Powers Act 2000
• fraud, an offence contrary to section 1 of the Fraud Act 2006
• unlawful processing of sensitive personal data, contrary to the Data Protection Act 1998

Individual directors and managers of the Internet Service Providers involved could be criminally liable for these offences.

The full text of the open letter can be viewed at:

http://www.fipr.org/080423holetter.pdf

RELATED DOCUMENTS

Richard Clayton's technical analysis:

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

Nicholas Bohm's legal analysis:

http://www.fipr.org/080423phormlegal.pdf

The Home Office statement from January 2008:

http://cryptome.org/ho-phorm.htm

QUOTES

Said Nicholas Bohm, General Counsel, FIPR:

"My legal analysis shows that the operation of Phorm's system involves illegal interception, fraud and breach of the data protection principles. Our papers demolish the existing Home Office statement, and it should be withdrawn. The Information Commissioner and the police should carry out a proper investigation of the complaints which have been made to them."

Said Richard Clayton, Treasurer, FIPR:

"Phorm's system will illegally intercept and process private and sensitive data, and we have now established that it will break other laws as well. The Home Office's superficial analysis said that the system would be lawful. Given their batting average at the High Court, relying upon their opinion was always unwise -- this new paper spells out the errors they have made, and makes it essential that their report is withdrawn.

CONTACTS

Nicholas Bohm
General Counsel, FIPR
01279 871272
07715 419728
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. Phorm (http://www.phorm.com/) claims that their "proprietary, patent-pending technology revolutionises both audience segmenting techniques and online user data privacy" and has recently announced that it has signed agreements with UK Internet service providers BT, TalkTalk and Virgin Media to offer its new online advertising platform Open Internet Exchange (OIX) and free consumer Internet feature Webwise.
3. In a statement released on 8th April the Information Commissioner's Office said:

   "A question has been raised by the some individuals about whether or not the Phorm products entails an unlawful interception of communications under the Regulation of Investigatory Powers Act 2000 (RIPA). The Home Office is responsible for compliance with RIPA and Phorm has approached the office directly and had a written response. Some organisations have stressed an alternative view that the scanning of the content of websites by the ISP on route to the user will entail an interception of communication during transmission. This is a matter that the Home Office takes the lead on and the Commissioner will not be taking any further action."