Phorm and the Home Office

[Rik]

The BBC is carrying a somewhat mind boggling story this morning, quoted in full:

The Home Office has been accused of colluding with online ad firm Phorm on "informal guidance" to the public on whether the company's service is legal.

E-mails between the ministry and Phorm show the department asking if the firm would be "comforted" by its position.

The messages show Phorm making changes to the guidance sought by the ministry.

Lib Dem Home Affairs spokeswoman Baroness Sue Miller, who has questioned the Home Office about Phorm, said the e-mails were "jaw dropping".

No-one from the Home Office was immediately available for comment.

The e-mail exchanges were released under a Freedom of Information (FOI) Act request made by a member of the public and sent to the BBC.

More information

The exchanges between the Home Office and Phorm date back to August 2007, in which the ministry asks the company for more information about the technology following a request made by Phorm for a view on its technology.

The Home Office has said previously that exchanges were about helping the department understand "public safety considerations and legal obligations" about behavioural advertising in general.

Phorm serves up adverts related to a user's web browsing history that it monitors by taking a copy of the places they go and search terms they look for. Adverts related to that history are put on any websites that have signed up to use Phorm.

So far BT has signed up to use the system, and carried out a series of trials, some of which were conducted without the consent of its users, sparking an outcry among privacy advocates.

The European Commission has also separately started legal action against the UK over the use of Phorm.

The commission said Phorm "intercepted" user data without clear consent and the UK needed to look again at its online privacy laws in order to better protect consumers.

E-mails from legal representatives of Phorm released under the FOI Act show the company repeatedly asking the Home Office if it "has no objection to the marketing and operation of the Phorm product in the UK".

Advertising platform

The Home Office has denied that it has provided "any advice to Phorm directly relating to possible criminal liability for the operation of their advertising platform in the UK".

However, e-mail exchanges over a series of months between the department and the firm show the Home Office asking the firm what it thinks of the advice it is drawing up in relation to behavioural targeted advertising, and making specific reference to Phorm's technology.

In an e-mail dated August 2007, an unnamed Home Office official wrote to Phorm's legal representative and said: "My personal view accords with yours, that even if it is "interception", which I am doubtful of, it is lawfully authorised under section 3 by virtue of the user's consent obtained in signing up to the ISPs terms and conditions."

In an e-mail dated 22 January 2008, a Home Office official wrote again to Phorm and said: "I should be grateful if you would review the attached document, and let me know what you think."

Some e-mails were sent from the Office of Security and Counter Terrorism at the Home Office.

Making deletions

In January 2008 the Home Office thanks Phorm for comments and changes to its draft paper, which show the company making deletions and changes to the document.

The Home Office official wrote to Phorm: "If we agree this, and this becomes our position do you think your clients and their prospective partners will be comforted."

Baroness Sue Miller, Liberal Democrat spokeswoman on Home Affairs, told BBC News: "My jaw dropped when I saw the Freedom of Information exchanges.
   
"The fact the Home Office asks the very company they are worried is actually falling outside the laws whether the draft interpretation of the law is correct is completely bizarre."

She added: "I couldn't be more surprised [that] the very department drawing up policy to protect people's privacy is being that cynical.

"Anything the Home Office now says about Phorm is completely tainted."

Baroness Miller said the Home Office most likely consulted Phorm because "they didn't have the capacity to understand the technology they are dealing with".

"But there people in academia with that knowledge," she added.

In a letter to the Guardian responding to an article written by Baroness Miller, Phorm's chief executive Kent Ertugrul denied there was any "collusion" between the firm and the Home Office.

He wrote: "This is untrue and misrepresents the way in which the British legal system works."

He said the advice given by the Home Office was "an informed opinion on ISP-based targeted advertising, but in the United Kingdom it is for the courts to decide what is or is not legal, not the Home Office".

Baroness Miller said she was concerned that the Home Office was "very interested in the technology" for its own purposes.

However, Mr Ertugrul said it was "misleading to invent a link between Phorm's innovative technology and the Government's plans for counterterrorism".

Phorm has consistently defended its technology, saying it offers greater privacy protection than rival systems, and that it could help generate fresh sources of advertising revenue for websites.

The company has also stressed it believes consumers will benefit because they would receive more relevant adverts.

The company has launched a website, which it says is aimed at stopping the "orchestrated smears" against Phorm.

Jim Killock, executive director of privacy campaigners, the Open Rights Group, said: "The Home Office's job is to uphold the law: not to reinterpret it for commercial interests. It's extraordinary, when you think of the blatant disregard Phorm showed towards UK laws in its secret trials, that this sort of lax attitude should be shown."

[Simon]

It just goes to show that the Home Office doesn't know it's arse from it's elbow when it comes to IT.

[Rik]

One wonders if Phorm were donating to the Labour party at the time? 

[Simon]

Strangely, the word 'bung' had crossed my mind.

[Rik]

 

Like minds and all that...

[gizmo71]

Sorry to side with the government (exception that proves the rule etc) but the Home Office is right, they can only offer advice on whether something might be legal, it's for the courts to decide whether it actually is or not. (Try getting advice from the Inland Revenue on such things without actually asking for a formal ruling!)

What's more ridiculous is that Phorm consulted the Home Office and not a lawyer!

[Gary]

If no one knows the legality of Phorms position with the public, I think that pretty much sums their position up, living in a grey area is the biggest clue 

[Sebby]

One wonders if Phorm were donating to the Labour party at the time? 

I certainly wouldn't be surprised...

[zappaDPJ]

Something stinks and it isn't my socks. If you've read the exchanges between the Home Office and Phorm it's pretty apparent that the Home office is hell bent on telling Phorm what it wants to hear. As the email exchanges were obtained under the Freedom of Information Act I see no reason why they shouldn't be quoted.

22. Targeted online advertising undertaken with the highest regard to the
respect for the privacy of ISPs' users and the protection of their personal
data, and with the ISPs' users consent, expressed appropriately, is a
legitimate business activity.  The purpose of Chapter 1 of Part 1 of RIPA is
not to inhibit legitimate business practice particularly in the
telecommunications sector.  Where advertising services meet those high
standards, it would not be in the public interest to criminalise such
services or for their provision to be interpreted as criminal conduct.  The
section 1 offence is not something that should inhibit the development and
provision of legitimate business activity to provide targeted online
advertising to the users of ISP services.

While it is true the Home Office can only advise on the law I have to wonder who gave the go ahead that allowed BT to break the law by conducting an illegal trial of Phorm on its Broadband network in the first place. The Home Office's interpretation of the Regulation of Investigatory Powers Act 2000 (RIPA) appears to want to justify and endorse Phorm's method of operation. They are clutching at straws all the way down the line of which this is an example...

22. Targeted online advertising can be regarded as being provided in
connection with the telecommunication service provided by the ISP in the
same way as the provision of services that examine e-mails for the purposes
of filtering or blocking spam or filtering web pages to provide a
specifically tailored content service.

My interpretation of what I've read is that the Home Office, BT and Phorm should get a room as they appear to be having a cozy threesome!

[EDIT] One other thing, I wonder if BT or the Home Office realise that in dealing with Phorm they are getting into bed with Kent Ertegrul, the person responsible for all of this: http://en.wikipedia.org/wiki/Phorm

And here's a website that has literally just appeared. It's run by Phorm and I think the look and general tone of it paints the company in their true colours: http://www.stopphoulplay.com/

Some more interesting stuff on thinkbroadband: http://www.thinkbroadband.com/news/3943-phorm-blogs-against-collusion-smear-campaign.html

I really must go to bed 

[Rik]

So, basically, their approach is "If you're not for us you're engaged in a conspiracy against us (or just plain mindless)".

[Gary]

So, basically, their approach is "If you're not for us you're engaged in a conspiracy against us (or just plain mindless)".

Looks that way, Rik. Seems like the Governments stance as well though with all the new surveillance on the internet they have now that tracks our moves . Maybe Kent Ertegrul and Gordon Brown  should get a room 

[Rik]

Who's to say they haven't already, Gary.

[Gary]

Who's to say they haven't already, Gary.

[talos]

Sounds like an ideal opportunity to sell them misinformation or give them what they want to hear

[gizmo71]

22. Targeted online advertising undertaken with the highest regard to the
respect for the privacy of ISPs' users and the protection of their personal
data, and with the ISPs' users consent, expressed appropriately, is a
legitimate business activity.  The purpose of Chapter 1 of Part 1 of RIPA is
not to inhibit legitimate business practice particularly in the
telecommunications sector.  Where advertising services meet those high
standards, it would not be in the public interest to criminalise such
services or for their provision to be interpreted as criminal conduct.  The
section 1 offence is not something that should inhibit the development and
provision of legitimate business activity to provide targeted online
advertising to the users of ISP services.

Since we're quoting chunks out of context I'd like to know how anybody could interpret the above to imply specific blessing for Phorm. It talks only in general terms about targetted advertising (which in and of itself is perfectly legal) and makes it clear that such activity must be in the context of both consent and protection of privacy.

This whole 'collusion scandal' is manufactured nonsense. If you really want to go chasing conspiracy theories it's more likely that they've cooked up Phormgate to distract from the imploding economy!

"Never attribute to malice that which can be adequately explained by stupidity." An the latter isn't in short supply in the Home Office!

[Rik]

Fair comment, Giz.

[zappaDPJ]

Since we're quoting chunks out of context I'd like to know how anybody could interpret the above to imply specific blessing for Phorm. It talks only in general terms about targetted advertising (which in and of itself is perfectly legal) and makes it clear that such activity must be in the context of both consent and protection of privacy.

This whole 'collusion scandal' is manufactured nonsense. If you really want to go chasing conspiracy theories it's more likely that they've cooked up Phormgate to distract from the imploding economy!

"Never attribute to malice that which can be adequately explained by stupidity." An the latter isn't in short supply in the Home Office!

The paragraph quoted is the conclusion to a 22 point email sent to Phorm by the Home Office. The email theorises on whether or not targeted online advertising is lawful where the interception of communications data is involved and whether that interception falls foul of the RIPA. I think that it does but the Home Office appears from the email to conclude otherwise.

I have no idea why the Home Office has chosen to advise Phorm but I can see why accusations of collusion have arisen. One of the emails from the Home Office is reported to say "If we agree this, and this becomes our position do you think your clients and their prospective partners will be comforted". Obviously I have no idea what it is that is being put up for agreement but surely the Home Office shouldn't be taking any position at all in this matter?

[Rik]

They shouldn't. It's for lawyers to advise, not legislators.

[Tacitus]

The email theorises on whether or not targeted online advertising is lawful where the interception of communications data is involved and whether that interception falls foul of the RIPA. I think that it does but the Home Office appears from the email to conclude otherwise.

What it also reveals is that in any dispute the HO will come down on the side of business, rather than protect the public.  So far as the government is concerned, we are not citizens we are simply units of consumption, available to the highest bidder. 

[Rik]

Succinctly put, Tac. We see the same with many Ofcom decisions, for example.