Original URL: http://www.theregister.co.uk/2008/04/24/home_office_phorm_fipr_bt/

Home Office defends 'dangerously misleading' Phorm thumbs-up

'Protecting the public'

By Christopher Williams

Posted in Government, 24th April 2008 15:51 GMT

Updated The Home Office today defended advice it gave BT and Phorm that their "Webwise" agreement to track millions of broadband subscribers will probably be legal if consent is obtained.

Meanwhile, it has emerged that neither BT nor Phorm sought any government advice on the wiretapping trials conducted in autumn 2006 and summer 2007. The lack of notice was confirmed to campaigners by Home Office Regulation of Investigatory Powers Act (RIPA) expert Simon Watkin.

The Foundation for Information Policy Research (FIPR), which has carried out detailed technical and legal analysis of the proposed system, wrote to the Home Secretary Jacqui Smith yesterday to urge her to withdraw the advice it gave in February this year. FIPR's open letter (pdf) said: "Your department's note can now be seen to be significantly incomplete and dangerously misleading."

FIPR argues that Phorm is disingenuously using the Home Office's advice to claim legitimacy. A legal counterpoint to the note, written by FIPR's chief counsel Nicholas Bohm, charges that - notwithstanding BT and Phorm's two secret trials in 2006 and 2007 - the final system will break wiretapping, fraud and data protection laws designed to protect the public.

In a statement, the Home Office emphasised that the note should not be taken as gospel by anyone. It said: "We can't comment on the legal position of targeted online advertising services. It is up for [sic] the courts to interpret the law.

"We did prepare an informal guidance note. It should not be taken as a definitive statement or interpretation of the law, which only the courts can give. It wasn't, and didn't purport to be, based upon a detailed technical examination of any particular technology."

A spokesman said the department would not be making any direct statement on FIPR's call for it to withdraw the advice. It provided this general comment:

Working to protecting [sic] the public, we can help industry understand the threats to public safety from emerging technologies and achieve a workable balance between commercial and public safety interests.

We welcome companies sharing commercially sensitive ideas and proposals with us in confidence if that means public safety considerations and legal obligation [sic] can be taken into account, where appropriate, in the conception of new products and services.

Ultimately it is a free commercial market and providers of goods and services need only ensure they are compliant with relevant legislation.

Read on for details of political manouvering to make BT accountable for the secret trials...

Westminster gets Webwise

Separately yesterday, BT despatched spinners to the offices of Liberal Democrat MP Don Foster. He has been the national telco's most vocal critic in Parliament over the secret trials, branding them "disgraceful".

The BT representatives maintained the party line that no personally identifiable information was shared, but were told that Foster intends to continue to push for the trials to be investigated. He is waiting for replies from Jacqui Smith and the Information Commissioner's Office (ICO). Foster's early day motion on the subject has now garnered 36 MPs' signatures, from all the major parties.

The Liberal Democrats say that they are not opposed to a ISP tracking their subscribers for advertising purposes if consent is obtained. However, a party official told The Register that it wants to see the law upheld over the covert communications interceptions that BT acknowledges it carried out.

The ICO's public comment on Phorm/Webwise addresses only the upcoming deployment. It has once again been amended, however, this time to add qualifiers about whether Phorm has been truthful. A sentence added to "version 1.3" states: "Whether or not the deployment of the Phorm products raise matters of concern to the Commissioner will depend on the extent to which the assurances Phorm has provided so far are true."

It's known that a file has been opened by the ICO in the case of Weston-super-Mare businessman Stephen Mainwaring for alleged breaches of the Data Protection Act (DPA) and Privacy and Electronic Communications Regulations (PECR). He was misled by BT that his computer had a spyware infection, when in fact his connection and tens of thousands of others had been co-opted into a secret Phorm/Webwise trial.

Bohm's legal analysis, also released on Wednesday, further details police refusal to investigate BT and Phorm's alleged large scale law breaking. As we reported last week, front line police passed the buck to the Home Office, which then refused to act, saying it has no role in investigations. It attempted to pass the buck in turn to the Investigatory Powers Tribunal, a body whose powers are limited to complaints over interceptions carried out on behalf of government agencies.

BT has refused The Register an interview regarding its actions over Phorm/Webwise. ®

Update

Following publication of this article, Phorm sent us this statement:

FIPR is abusing its influence and promoting its own agenda by encouraging a frivolous debate about the legality of a legitimate e-commerce business. Internet users would be better served if FIPR focused on the benefits of the online technologies available today rather than undermine the online privacy debate and block technological progress. That would help people to make valid informed choices about the services they want to use.