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Government Advisors Claim Phorm is Illegal

Posted: 18th Mar, 2008 By: MarkJ
The Foundation for Information Policy Research (FIPR) has issued an open letter to the Information Commissioner, proclaiming that Phorms data pimping system is illegal. The group believes, as others do (news), that Phorms system contravenes the Regulation of Investigatory Powers Act 2000 (RIPA):

Open Letter Quote: Users should have to opt in to such a system, not merely be given an opportunity to opt out. We believe this is also required under European data protection law; failure to establish a clear and transparent "opt-in" system is likely to render the entire process illegal and open to challenge in UK and European courts.

It would be specially objectionable if opting out were to depend on the maintenance by the user of a cookie, since many reasonable users regularly clear all cookies; nor should users be expected to opt out by blocking one or more websites, since many may not understand how to do this or may make errors in trying to do so.

Classifying users by scanning the content of their communications involves interception in the sense of s1 and s2 of the Regulation of Investigatory Powers Act 2000. That is because classification cannot be done without the content being made available to the person doing the classifying. The fact that he does so by the application of machinery which avoids the need for him to read the content is irrelevant -- it is clear, for example, from ss16(1) that material is to be treated as intercepted even before classification or examination and despite the fact that it may not be lawful to examine it..

FULL OPEN LETTER:
http://www.fipr.org/080317icoletter.html

The letter raises a number of valid issues and puts a series dent into Phorms charm offensive. Likewise BT and Virgin Media would have to be blind not to see the concerns surrounding this, which might hopefully coax them into adopting a more acceptable "opt-in" system.

Readers wishing to catch up on all the recent Phorm coverage should view this link:
http://www.ispreview.co.uk/light.php?search=Phorm
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