I went to bed last night doubting my own senses. This doesn’t happen often but when I read late last night that Phorm seem to think that complaining to Proctor & Gamble about nappies is evil I really did wonder if someone had slipped something into the water supply.
A refreshing night’s sleep later and I find that it wasn’t tiredness or anything illicitly deposited in the water supply. Phorm do genuinely think that complaining about nappies is a sign of evil. In a move that’s more suited to teenage bitching and whining on MySpace, Phorm have created an anti-anti-Phorm site.
But guess what? It’s a bit light on actual fact regarding some real issues. Here’s a brief summary of real facts for people new to the debate. I’ve tried to keep this as techie free as possible. The links will explain in more detail.
Before you read on, please bear in mind two things:
One: References are included here for you to verify quotes and sources. These are facts, not some schoolboy smear campaign.
Two: There is no such thing as truly anonymous internet tracking data. You can be identified from internet tracking data, even if it is claimed to be anonymous.
The Phorm story came to light in February 2008. People were concerned about privacy issues and commented as such on the article. Two weeks after that it emerged that BT had been secretly testing Phorm’s “Webwise” product on its customers without their knowledge or consent. BT even denied something was going on at that time. They lied to their customers. That lit the blue touchpaper, if you like.
Phorm have claimed that they have legal opinion confirming “Webwise” is legal. They have since a “marketing communication” from Charles Stanley Securities was issued in April 2008. Despite repeated challenges to publish this legal opinion, Kent Ertugrul has failed to do that.
I’ll say that again.
Despite repeated challenges to publish this legal opinion, Kent Ertugrul has failed to do that.
I was contacted by Phorm’s PR people Citigate Dewe Rogerson early in April inviting me for a chat with senior people at Phorm. This was my response. I haven’t heard a peep out of them since. Kent accuses The Register of being a “mouthpiece”. Wasn’t the intention of CDR in contacting me to try and turn me into a mouthpiece for Phorm?
An open meeting was held in April 2008. Legal argument put forward by Dr Richard Clayton and Alexander Hanff remains to be countered. Some unofficial video was taken and posted, so you can see for yourselves the “intimidatory language” used by Dr Clayton and Alexander Hanff.
Dr Richard Clayton using intimidatory language? Alexander Hanff using intimidatory language? Please! Since when has a simple presentation of facts and legal argument been intimidatory? Next Kent will be accusing Dr Richard and Alexander of being members of the Mafia.
For anyone interested in the techie discussion so far, check out Blackbeak’s blog entry at the time.
Chris Williams at The Register and campaigners in various forums worked to investigate what advice was given to whom and when, while also complaining to MPs, Peers and the European Commission.
Highlights of what’s happened since then.
In an email to a concerned reader, advertising manager Simon Kilby revealed the retreat:
It is true that we have had conversations with them [Phorm] regarding their services but we have concluded at this time that we do not want to be part of the network. Our decision was in no small part down to the conversations we had internally about how this product sits with the values of our company.
I hope you appreciate that the quality of the Guardian’s editorial is funded by our advertising sales operation and it is our duty to keep abreast of all developments in this sector. In this instance, however, I agree with you that this is not something that we should be partnering.
Read the bold bit again: Our decision was in no small part down to the conversations we had internally about how this product sits with the values of our company. In other words The Guardian does not see Phorm as fitting in with its ethical standards. Ouch!
Orange sent us the following statement: “As a network provider, we are very close to our customers and as a result are trusted with their personal information. We take this responsibility extremely seriously and it is our policy to be clear and transparent on how this data can be used, without compromising privacy.”
Read the bold bit again: We take this responsibility extremely seriously and it is our policy to be clear and transparent on how this data can be used, without compromising privacy. In other words Orange do not believe Phorm are being clear and transparent. Ouch!
Virgin Media, signatories to a “preliminary agreement” with Phorm, issued their own statement clarifying their involvement with Phorm. This is significant because it is unusual for partner organisations to make announcements that differ.
In a meeting with the Home Office in June 2008, Phorm didn’t make any mention of the secret testing they had been involved with.
The ICO, supposedly proectors of our rights, decided they weren’t going to take any action against Phorm, even though they had already confirmed that the BT & Phorm secret testing broke the law.
July 2008 saw the European Commission tell the UK “government” that if it didn’t take action over the BT secret testing with Phorm, they would.
Phorm claim that the UK “government” Department for Business, Enterprise, Regulation and Reform (BERR from this point on) had confirmed “Webwise” was fully compliant with UK legislation and relevant EU directives.
That’s not what BERR are saying. See the BERR response to a Freedom of Information request.
Any claim that the UK “government” Home Office has provided legal guidance is also wide of the mark. Check the actual note here, especially points 2 and 15.
After warning the UK “government” that they would act if UK.gov didn’t, the European Commission announced legal proceedings against the UK “government” over its failure to deal properly with BT and Phorm over the secret tests in 2006 and 2007.
Despite the question marks over “Webwise’s” legal status, Phorm wants to press ahead with its implementation. So the Open Rights Group wrote to some of the largest websites out there asking them to opt-out of the “Webwise” scheme.
Be clear on this: opt-out is not in line with EU legislation, which says such schemes should be opt-in only:
While we recognise that an “opt-out” is an entirely second-rate way of dealing with this problem, we would strongly urge you to take advantage of it, in order to immediately reduce the risk of harm to
your company and to your customers.
And slowly the responses came in.
So has the Wikimedia foundation.
Let’s not forget attempts at bullying. Phorm’s legal people Schillings tried to threaten Alexander Hanff over the reproduction in a forum of information already available in the public domain.
Then the UK “government” announced that the All Party Parliamentary Committee on Communications would hold an inquiry into Internet traffic. Phorm jumped at the chance to issue a press release which reeked of an attempt to get preferential treatment by the Committee, naming as it did Mr Derek Wyatt MP and Mr John Robertson MP and saying that they wanted to “make arrangements to offer expert opinion”.
The requirements for response are clear. No arrangements need to be made:
At 5:46pm yesterday (23rd April) I received this response:
I can confirm that all responses submitted to the apComms inquiry will be required to adhere to exactly the same requirements as set out in the press release. Review of submissions will be undertaken impartially.
Mr Wyatt’s reply was short and simple:
They have not contacted us as if they do they’ll get short shrift
Given these facts, who do you choose to believe?
A company who will not (cannot?) publish the legal advice which could make a huge difference to this debate?
A company who hired PR companies to go into tech forums as “Phorm Comms Team” and try to spin the debate?
A company who threatens people for repeating information already in the public arena?
A company whose PR people try to single out people to become mouthpieces for them rather than answer the questions already put to them?
A company which has descended to schoolboy smear tactics because it hasn’t got a winning argument?
While working on this, a report from PC Pro’s website makes very interesting reading indeed:
The Home Office allegedly checked whether its interpretation of the law suited Phorm, before issuing advice on whether the controversial advertising service was legal. The Home Office and Phorm entered a dialogue about the company’s services back in August 2007, after Phorm requested that the Government take a view on its technology.
Leaked emails sent to the BBC suggest that Phorm helped edit and approve the Home Office advice.
The report goes on and is well worth reading.
Is this the act of a trustworthy company?
In conclusion, I believe there is very strong argument that Phorm’s “Webwise” product is illegal. Phorm have yet to prove otherwise.
There’s a lot more stuff out there about Phorm, “Webwise” and the anti-DPI campaign which can easily be found by looking through VFPJ, The Register, NoDPI, BadPhorm, InphormationDesk and Dephormation. It covers technical, legal and behavioural arguments so gets complex in places.
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.
Come on Kent. Prove me wrong. Your PR people know my e-mail address.
Are Phorm’s behaviours here the acts of a trustworthy company?