Phorm papers reveal BT's backwards approach to wiretap law
Would you trust these men with your network security?
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Exclusive BT's long-held claim that legal advice said its Phorm trials did not breach wiretapping laws came under renewed scrutiny today, as documents revealed the firm approached government experts after it had secretly co-opted 18,000 broadband customers into the advertising targeting system.
Papers obtained from the Home Office under the Freedom of Information Act show that the department was first contacted about Phorm on 15 November 2006. The first secret trial of the system conducted by BT Retail ran between 23 September and 6 October that year.
BT's initial approach was followed by further emails to civil servants on 7 December 2006 and 23 January 2007. The content of the correspondence are being kept secret by officials, who cite confidentiality exemptions under FOIA. The Home Office is currently conducting an internal review of that embargo.
The sequence of events means that BT executives did not ask the Home Office whether Phorm's technology might contravene the Regulation of Investigatory Powers Act 2000 (RIPA) until after their experiment to profile customers' web browsing for advertisers without their consent had been judged a success.
And just as Phorm did not disclose the secret trials when it met Home Office officials in August 2007, BT did not mention them when it sought government legal opinion. Home Office spokesmen have said it was not aware that either the 2006 or 2007 trial had taken place until they were revealed by The Register.
On 3 April BT Retail's head of value-added services Emma Sanderson said on television: "We don't believe this is illegal. We have sought extensive advice, both internally and externally, and prior to conducting this trial... It's not illegal."
We asked BT why it queried Phorm's system with government RIPA experts after the trial, if it was certain it was legal beforehand, and why it did not disclose that it had already deployed the technology. It sent us this statement:
Both tests were technical tests to evaluate the functional performance of the platform. For tests of this nature, regulatory authorities are not normally consulted. There was no reason for us take a different approach in this instance, or to subsequently inform the authorities. Our correspondence with the Home Office concerned the overall proposition rather than the technical tests themselves.
Nicholas Bohm, a legal expert at the IT think tank Foundation for Information Policy Research which has questioned the legal advice BT says it took, said the firm's decision to get government approval after it had deployed the system was risky. "If the advice was that it might be legal and it might not be, then clearly they were running a significant risk with this trial. I find it very hard to believe they thought it was completely legal because there was no attempt to seek consent from anyone," he said.
Meanwhile Register sources said there is "significant tension" within BT over the ongoing Phorm fracas, particularly between its Global Services and Retail divisions.
It's understood that elements within Global Services, which on par with Retail generates about 40 per cent of the group's revenues, perceive their international reputation for competence on network security is being damaged by association. A spokesman for the group denied any split. He said: "I don't think that's true... I suppose I am refuting the suggestion."
A further BT trial of Phorm's technology, this time with consent from 10,000 customers, has been repeatedly trailed as imminent since March. At the group's AGM on 16 July BT Retail chief executive Gavin Patterson said it would launch "in a couple of weeks".
BT's spokesman said invitations would be issued "soon". He refused to elaborate, citing fears the project would become a "hostage to fortune". ®
You can find all our reporting of the Phorm affair here.
COMMENTS
@Mark
Follow the money. If Phorm overwrote other people's ads, those other people would detect this, and have something to say about it, and fast.
i.e. it's not something that Phorm could keep secret from people who have a commercial interest in them not doing it.
You are quite right that you and I might not know it was happening, but the overwritten advertisers would.
While I wouldn't put anything past Phorm - or BT for that matter - I do think they are clever enough only to do things they think they can get away with. Not, of course, that they are quite clever enough to know when this will be true....
Re Adblock, though, why would you want to just block Phorm/OIX ads?
I block the lot, no matter where they come from.
Paris, because she can inspect my packet any time she likes
@Lewis Chan
From the last publicised version of how Phorm/WebWise was to work, there are two cookies, one was an 'opt-out' cookie, so by deleting it you would be immediately opting yourself back into the targeted ads system. Another cookie was used to store your profiling info but if you delete that it will be replaced by the Phorm/WebWise system next pass through.
The problem that people should focus on is not the ads themselves, it's the 'man-in-the-middle'-like nature of what Phorm/WebWise does. It sits at the ISP, copying your page requests and responses, sifting them for keywords, which are then used to build a persistent profile.
If you choose not to view on-line ads, or be tracked, then you can take steps to block such actions by the likes of Google, etc, (via AdBlock, NoScript, etc) or use an alternative service (such as Scroogle so not even your IP is tracked), but you cannot avoid the snooping by Phorm/WebWise short of sending all of your traffic encrypted as everything goes through Phorm/WebWise kit at the ISP even if you opt-out.
No real detail has been given about how such data passing through their system is analysed, apart from assertions that they will not keep/use numbers over a certain length (that might be credit cards) and that they cannot view HTTPS traffic. They also promise not to keep data for opted-out customers, although initial reports said the data would still be analysed. There has also been inconsistent data given about how the system works, whether data is actually stored before processing, who will have access to the data at what stage, etc.
Phorm is the new name of a primarily Russian-based company formerly known as 121Media who previously produced software branded as spyware, and a rootkit, which they stopped distributing when the CDT in the US raised a formal complaint for deceptive behaviour.
Do you really want a company like that having access to your data, all of your browsing data, whether you opt-out or not?
Do you also want to use an ISP that has lied about using this system in trials, misled the public as to it's purpose, and now it seems operated without proper legal advice in the early stages?
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