Original URL: http://www.theregister.co.uk/2010/09/06/ico_stalkstalk/
ICO chides TalkTalk over sneaky StalkStalk trials
Malware monitoring tech draws official ire
Christopher Graham, the Information Commissioner, has rebuked TalkTalk for following its 4.2 million customers around the web without telling them.
He also told the firm he was disappointed it kept the trials of its forthcoming anti-malware system quiet at a recent meeting, citing the controversy when BT's similarly unpublicised trials of Phorm's targeted advertising technology were exposed.
In letter to TalkTalk at the end of July, obtained under the Freedom of Information Act, Graham said: "I am concerned that the trial was undertaken without first informing those affected that it was taking place.
"You will be aware that compliance with one of the underlying principles of data protection legislation relies on providing individuals with information about how and why their information will be used. You will also be aware that these principles are not suspended simply because the information is being used for the purposes of a trial."
He asked TalkTalk to provide documents to support its public claims that the technology and the trials comply with privacy laws.
The system - provided by the Chinese vendor Hauwei - works by harvesting every URL visited by every TalkTalk customer. It then follows them to each web page and scans for threats, creating a master blacklist and a whitelist of dangerous and safe URLs.
When the full system launches later this year, customers who opt to use the anti-malware service will be stopped from visiting blacklisted web pages. URLs visited by customers who don't want to use it will continue to be logged and scanned.
The Register first reported the trial had begun in July, apparently catching the Information Commissioner's Office (ICO) off-guard.
"In light of the public reaction to BT's trial of the proposed Webwise [Phorm] service I am disappointed to note that this particular trial was not mentioned to my officials during the latest of our liaison meetings," Graham wrote.
"I appreciate that your analysis may have led to the conclusion that it was not necessary to provide us with this information but we would be in a much better position to respond to the enquiries we have received on this matter if we had the chance to review and discuss the trial with you."
The ICO is responsible for enforcing compliance with the Data Protection Act (DPA) and the Privacy and Electronic Communications Regulations (PECR). In response to public concern over the trial, TalkTalk technology chief Clive Dorsman wrote the firm's "use of the anti-malware system is compliant" with both pieces of legislation, without providing details.
In a briefing (pdf) drawn up in preparation for a meeting with the ICO, also released under the Freedom of Information Act, TalkTalk explains its claims.
It insists "the individual cannot be identified from the data itself nor from the data together with any other information in our possession". Therefore, TalkTalk argues, the system is not processing personal data, and so complies with the DPA.
The firm uses a similar argument to claim it complies with section 7 of PECR, which restricts processing of traffic data relating to individuals.
The anti-malware system also complies with the confidentiality section of PECR, TalkTalk says, because it "does not store information, or gain access to information stored, in the terminal equipment of a customer".
Opponents charge that URLs are in fact stored in customers' computers. By harvesting web addresses from its network without telling users, they argue, TalkTalk falls foul of provisions of PECR requiring that they are "provided with clear and comprehensive information about the purposes of the storage of, or access to, that information" and "given the opportunity to refuse the storage of or access to that information".
The same privacy advocates say that like Phorm, TalkTalk's anti-malware system is illegal under the Regulation of Investigatory Powers Act (RIPA), which criminalises interception except in specific regulated circumstances. RIPA is not the ICO's responsibility, but the Crown Prosecution Service is still considering action over BT's secret trials. ®