The Foundation for Information Policy Research has sent an open letter to the Information Commissioner, Richard Thomas, claiming that the online advertising system Phorm is illegal in the UK. The UK three biggest broadband suppliers BT, Talk Talk and Virgin Media have all said they will run pilots of the system which track users' online activities the better to deliver them "˜personalised', relevant adverts - allegedly.
Thomas' attack is just the latest: earlier this week the British inventor of the world wide web, Sir Tim Berners-Lee also spoke out against the practice of exploiting what users do online to sell to them.
In the open letter, Thomas says that deploying Phorm would leave the ISPs open to so-called class action law suits concerning the violation of privacy and the illegal processing and use of data. Furthermore, he claims that under the Europe Union's data protection laws, customers must 'opt-in'.
The Foundation for Information Policy Research also argues that 'the Phorm system will be "˜intercepting' traffic within the meaning of Section 1 of the Regulation of Investigatory Powers Act 2000. In order for this to be lawful then permission is needed from not only the person making the web request BUT ALSO from the operator of the web site involved (and if it is a web-mail system, the sender of the email as well).'
The open letter a says that 'although in some cases this permission can be assumed, in many other cases, it is explicitly NOT given -- making the Phorm system illegal to operate in the UK.'
However, David Marsh, a consultant with the British law firm Dickinson Dees and former legal rapporteur to the United Nations on electronic commerce explains, "The reason the industry is not too worried about the opt in clause is because it's pretty much impossible to prove either way. Who can remember with any certainty whether they ticked the box to receive or not‾
"We agree to all sorts of terms and conditions on the web without even reading them. For instance, did you know that when you sign up to Google Earth you agree that hotel information can be sent to you‾ Does anyone know what it says in their mobile operators' terms and conditions‾ Legitimate businesses hide behind the opt-in clause in data protection legislation to justify sending out unsolicited email and SMS. So the activity is, in most instances, illegal but cannot be policed.
"Law is not the issue - the issue is that unless restraint is observed"&brkbar;the industry is in great danger of killing the goose that could lay golden eggs."
The argument is not over yet. Certainly service providers of all stripes are not going to abandon a potential new revenue stream in the face of their core income being eroded without a fight.