Feeds

Information Commissioner: Phorm must be opt-in only

Data protection probe into secret trials too

Next gen security for virtualised datacentres

Updated The Information Commissioner's Office (ICO) has issued a major revision to its statement on Phorm, insisting that the ad tracking system must be deployed on an opt-in basis to comply with the law.

Of the three ISPs connected to the scheme, only Carphone Warehouse has committed to opt in when the system is finally rolled out. BT has not commented on how its national deployment will obtain consent.

Virgin Media meanwhile says that despite Phorm's note to the contrary, it did not "confirm [an] exclusive agreement" (to implement Phorm) - merely a memorandum of understanding that if it does decide to track customers, Phorm will be the technology provider. A concerned customer claims that he was told by CEO Neil Berkett's office: "We haven't signed up with Phorm, we've expressed an interest."

The ICO's tougher stance also means that as far as the ICO is concerned, BT and Phorm's secret and allegedly illegal trials without consent conducted in 2006 and 2007 are subject to investigation under DPA.

A spokeswoman said more news on the probe will be forthcoming, but was unable to provide a timetable for when the tens of thousands who were tracked and profiled can expect to see those responsible held to account. BT has refused to answer questions on why it believes it acted within the law.

The ICO released a first version of its statement on Friday 4 April and was branded a "green light for law breaking" by legal experts at the Foundation for Information Policy Research (FIPR). The long-awaited document merely parroted assurances that web browsers will be anonymous.

The extensively-rewritten statement now however includes strongly-worded concerns about the system under the data Protection Act (DPA) and the Privacy and Electronic Communications Regulations (PECR), which grant the ICO's powers.

Today's statement, which only covers future deployments of Phorm technology, reads:

Even if Phorm is not processing personal data, the ISP undertaking the profiling may be to the extent that it uses IP addresses in that profiling and is able to link its customers to an IP address although this may not be its intention.

To the extent that personal data is processed that processing must be fair and lawful in order to comply with the First Principle of the DPA.

Regulation 7 of PECR will require the ISP to get the consent of users to the use of their traffic data for any value added services. This strongly supports the view that 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.

The PECR is an implementation of a 2003 European directive aimed at protecting personal privacy online.

Nicholas Bohm, FIPR's general counsel, welcomed the ICO's revised statement. "It's good news that he [Information Commissioner Richard Thomas] says that nothing less than an explicit opt-in will do. It's a strong and valuable conculsion to draw."

The Commissioner also used the statement to pass responsibility for enforcing the Regulation of Investigatory Powers Act to the Home Office. Bohm criticised the move, saying: "I'm sorry he has ducked the interception issue. In my opinion his hands are not tied, and he is perfectly entitled to investigate any general unlawfulness around personal data."

BT and Phorm were unavailable for comment. ®

Updates

80/20 Thinking, the consultancy firm that produced an interim privacy report for Phorm, has organised a "Town Hall meeting" on 15th April in London, where the public can address Phorm's CEO Kent Ertugrul and technical SVP Marc Burgess. Details here.

Phorm sent us another statement:

We've not yet had the opportunity to discuss PECR with the ICO but will do shortly. However, the law is quite clear stating that any system requires valid, informed consent. We believe the approach that we will take to user notice will not only provide for such consent, but will in fact exceed the level of notice provided by anyone else.

We're very confident, as has been the case with the DPA and RIPA, that closer scrutiny will demonstrate that the way in which we obtain consent will substantially exceed any legal requirement.

Still no mention of those trials, eh?

The essential guide to IT transformation

More from The Register

next story
Don't call it throttling: Ericsson 'priority' tech gives users their own slice of spectrum
Actually it's a nifty trick - at least you'll pay for what you get
UK fuzz want PINCODES on ALL mobile phones
Met Police calls for mandatory passwords on all new mobes
Three floats Jolla in Hong Kong: Says Sailfish is '3rd option'
Network throws hat into ring with Linux-powered handsets
Netflix swallows yet another bitter pill, inks peering deal with TWC
Net neutrality crusader once again pays up for priority access
Fifteen zero days found in hacker router comp romp
Four routers rooted in SOHOpelessly Broken challenge
EE: STILL Blighty's best mobe network, says 'Frappucino' Moore
Fresh round of network stats fisticuffs possibly on the cards here
New Sprint CEO says he will lower axe on staff – but prices come first
'Very disruptive' new rates to be revealed next week
US TV stations bowl sueball directly at FCC's spectrum mega-sale
Broadcasters upset about coverage and cost as they shift up and down the dials
Tech city types developing 'Google Glass for the blind' app
An app and service where other people 'see' for you
Canadian ISP Shaw falls over with 'routing' sickness
How sure are you of cloud computing now?
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Top 10 endpoint backup mistakes
Avoid the ten endpoint backup mistakes to ensure that your critical corporate data is protected and end user productivity is improved.
Top 8 considerations to enable and simplify mobility
In this whitepaper learn how to successfully add mobile capabilities simply and cost effectively.
Rethinking backup and recovery in the modern data center
Combining intelligence, operational analytics, and automation to enable efficient, data-driven IT organizations using the HP ABR approach.
Reg Reader Research: SaaS based Email and Office Productivity Tools
Read this Reg reader report which provides advice and guidance for SMBs towards the use of SaaS based email and Office productivity tools.