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EU Commission’s View On Phorm-related Matters

Just in case anyone had hoped that Phorm, illegal use of DPI and privacy issues had dropped off my radar (*waves at all those pro-Phormers out there*), think again.  You’re still on my radar and will be for a long time to come.

Recently members of NoDPI, Privacy International and the Open Rights Group went to Brussels for a meeting with the EU Commission, including Commissioner Vivian Reding.  Remember that it was Commissioner Reding who announced the legal action against the UK “government” for its failure to act properly in enforcing EU directives against BT and Phorm.

The notes from the meeting are posted at NoDPI but some very relevant facts emerged that deserve to be highlighted.

EU Law does not recognise implied consent and that consent must be explicit and informed and that all such services must be Opt-In.

That’s a huge one.  If I have not explicitly said yes after full information has been provided to me then Phorm cannot say that I have consented to be part of their systems.

Content which is “broadcast” is not covered by RIPA with regards to interception, so one has to establish whether or not web transactions are broadcast or communicated. The Commission were again very strong in their support of our argument that web transactions are communications rather than broadcasts…  It is this very personalisation that Phorm seek to take advantage of as it is that data which gives their model value to the commercial sector.

The EU Commission see Phorm’s technology as in breach of RIPA as well as privacy directives.  Of course, Phorm have yet to publish a legal opinion supporting the legality of their Webwise “product” and rebutting these detailed legal arguments.

They were confused as to why the City of London Police chose not to take action and agreed that the claim of “no criminal intent” was a very foolish argument. They… were very interested to discover that the CPS have had the case since November but have not been seen to take any action.

“A very foolish argument” – that’s a very polite condemnation.  I wonder what the CPS are doing with the folder of evidence that Alexander provided for them?

The lack of enforcement powers within the Information Commissioner’s Office was also discussed at length and the Commission agreed it is a big problem which needs addressing. They were particularly interested to learn… that the UK is becoming a safe haven for unethical commercial practices which impact on privacy.

The ICO did not fare well in my APComms submission either.  I think the term “polite kicking” is a good description of what I said about the ICO.  Add to that the “government’s” lack of will to enforce existing legislation and we have the current position of the UK becoming a safe haven for unethical practices.

Here’s the real belter.  This is the equivalent to Phorm’s ludicrous claims of “privacy pirates” of what Malcolm Marshall’s bouncer did to Mike Gatting’s nose in 1986:

Mr Rudolf Strohmeier stated that in all his years working at the Commission there had only been 1 or 2 other issues which had generated such a high volume of written complaints from the public so they were taking the matter very seriously, which is why they initiated infringement action against the UK Government last month.

Please say that again Mr Strohmeier

such a high volume of written complaints from the public

Kent Ertugrul seems to think that his company is being victimised by a small group of angry people looking to cause trouble.  Well, that’s not what The EU Commission think.  I’ll quote Mr Strohmeier again for all those pro-Phormers out there:

such a high volume of written complaints from the public

The full post is at NoDPI and very well worth reading.  Click the link, read, and consider.

Just as people are rejecting the excesses of MPs once they know about them, so people are rejecting Phorm, its technology and what it stands for.

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