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EU Commission Starts Legal Action Against UK “Government” Over Phorm: Oh Yes!

We have been called luddites.

We have been slated.

We have been accused of making “emotive statements”.

We have been seen by some people as an irritant, a nuisance worthy only of being patronisingly and contemptuously dismissed.

We have been seen by others as a bunch of nerdy techies making a fuss over nothing who should get out, get a life, a girlfriend  and join the real world.

Some of us have been threatened for simply copying information which is already available online, publicly and for free.

Well now it’s time for those people to get their heads out of wherever they have them stuffed and start taking us seriously.  That includes Neil Berkett of Virgin Media, Charles Dunstone of Carphone Warehouse, the entire board of BT and everyone at the Information Commissioner’s Office.

Today the European Commission made the following announcement:

The Commission has opened an infringement proceeding against the United Kingdom after a series of complaints by UK internet users, and extensive communication of the Commission with UK authorities, about the use of a behavioural advertising technology known as ‘Phorm’ by internet service providers. The proceeding addresses several problems with the UK’s implementation of EU ePrivacy and personal data protection rules, under which EU countries must ensure, among other things, the confidentiality of communications by prohibiting interception and surveillance without the user’s consent. These problems emerged during the Commission’s inquiry into the UK authorities’ action in response to complaints from internet users concerning Phorm.

What that means in simple language is that the European Commission is taking legal action against the UK “government” for its failure to properly investigate the secret testing of Phorm’s technology by BT.

You can read the full text of the Commission’s announcement at The Register’s report.  Then head on over to NoDPI to read Alexander Hanff’s reaction to this news.  For those of you who don’t know, Alex has been at the forefront of the campaign against the use of DPI technology.  Here’s a snippet of Alex’s post, the whole of which I agree with wholeheartedly:

This is fantastic news and after 14 months of campaigning it is rewarding to see that at last the public lobby has come through.  It was done without millions of pounds of budget; it was done without expensive PR teams and legal hammers; and it was done with a level of determination by the general public which is hard to match.

I have written at some length about Phorm here on VFPJ.  After my initial response to Phorm’s PR on April 11th 2008 I have not heard any further response from them.  I have challenged Phorm openly to publish whatever legal opinion they have confirming Webwise’s legality.  It can’t be that difficult if Phorm do have such opinion from an eminent legal professional.  Nothing has been forthcoming from them.

Even today, in responding to The Register’s report

Phorm returned our call via email just after 4pm. It sought to soothe investors, saying it does not expect the Commission’s action to have any impact on its plans. It did not address the legal status of its previous secret trials.

So, to Kent Ertugrul, Phorm Chairman I offer this message:

I and others have been writing about Phorm for over a year.  I was there at the Open Meeting in 2008 where you completely failed to offer any counter argument to the contentions of Dr Richard Clayton and Alexander Hanff.  There is video footage online showing those presentations.  Which does make me wonder where the “official footage” is, almost a year on from that meeting.

I’ve asked you here and in other forums to make public the legal opinion you have which argues against Dr Clayton and Alexander Hanff.  This isn’t about emotive language, it is about legality. Legality is fact.  Not an emotive issue.

Legality is not an issue you can think “Oh well, it doesn’t matter” and ignore it.  Any law student will tell you that ignorance is no excuse in the eyes of the law.  It is one of the first things you learn in a law class!  Until I see a verifiable legal opinion to the contrary (a QC opinion will do, with full name, address and references so I can verify it) I will consider Phorm’s Webwise product as it stands an illegal invasion of privacy.

The European Commission has considered our arguments and is convinced that there is a case to answer.  This is only the beginning.  We will continue to campaign, to inform the European Commission, MPs, MEPs and everyone we know with some degree of influence that we believe what Phorm and Webwise stand for is illegal.

It’s a bit sad that the European Commission should have to take the UK “government” to task for its failure to address this issue properly.  As ever, the comments page following The Register’s reports makes interesting reading.  I would draw your attention to the comment “I dispute Mr. Kent Ertugrul’s assertion that BERR approved Phorm because..” in particular.  It rather points back to my original challenge.

Commissioner Vivian Reding clearly believes there is a case to investigate and hard questions to answer.  It is a savage indictment of the UK “government” that they have not already acted to protect the privacy rights of UK citizens.  Take note Stephen Pound MP – your “government” has failed and is now being held accountable by Europe.

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