UK Liberty

Phorm testing begins today – now you can consent

Posted in accountability, surveillance society by ukliberty on September 30, 2008

Yes, unlike the previous two trials, which were run without consent or knowledge of BT subscribers, Phorm / BT have decided to run an opt-in trial, starting from today and lasting four weeks: Guardian, BBC, Times, Telegraph.

Becky of the Open Rights Group has posted 4 good reasons not to take part in the BT Webwise trial.

Nick Bohm of the FIPR says Phorm commits a number of fouls, Phorm / BT obviously prefer a legal analysis that concludes there is a less of a problem.

But this bit from the Phorm / BT blog is nice:

An extensive article, “The Law of Phorm,” was published today by Struan Robertson, a technology lawyer and editor of legal site

It’s a very thorough, realistic and ultimately positive assessment of Phorm’s system from an informed legal perspective. The Phorm technology underpins Webwise (,, a new set of consumer features set to launch in the UK.

Unlike other analyses, the author focuses on the fact that there is no consumer harm, hence no realistic prospect of prosecution under RIPA (or anything else) including DPA, PECR and the Fraud Act.

Of course, that there is no realistic prospect of prosecution (or indeed civil action) does not mean that Phorm / BT has done nothing unlawful, does it?

It is however nice to know that Phorm / BT seems to agree with the following update to Robertson’s analysis:

Some readers have asked for my opinion on BT’s trial of Phorm, a trial that ran without user consent. Did it breach RIPA? Personally, I think that it probably did.


But I doubt the question will ever come before a court. The Home Office has already indicated that it does not intend to take action. I expect that is because it views the trial as an isolated incident. It would only take action if it believed that Phorm would normally operate without consent.

That is like saying the police shouldn’t prosecute a murderer if he does it just the once.


2 Responses

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  1. Paul said, on September 30, 2008 at 8:25 pm

    Of course, this trial still runs foul of the law since all packets are still running through Phorm’s servers.

    This is still opt-out (partially since cookies deleted will result in the ‘opt-in’ screen being shown.)

  2. ukliberty said, on October 2, 2008 at 9:55 am

    Great :(

    I forgot to say in the article, even if a user consents, the website he’s visiting probably hasn’t – e.g. Google – particularly if they’re running their own advertising scheme (it’s difficult to believe they would). So it seems to me it still breaks s1 RIPA and I wonder if it amounts to tortious interference.

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