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5 October, 2008

Say 'no' to Phorm: update

As Phorm's traffic-analysis-for-targetted-advertising software returns to BT, allegedly legally this time, the issue of consent has also returned.

The opt-in/out for users is awkward: BT customers are required to accept responsibility on a per PC, per user, per browser basis. If the server-side opt-out isn't available yet, BT, don't launch until it is.

As I mentioned in March, before Phorm can intercept traffic from individual websites, the law requires there to be permission from each website's owner too. As The Register reports, "in its advice to Phorm and ISPs, the Home Office said it believed that publishing a website gave implicit consent". A bizarre claim, but at least requiring BT to offer an opportunity to explicitly withhold permission.
It should really be an opt-in, of course, but I'm not going to boycott the opt-out whilst waiting for others to force BT to do the right thing.

One could block all search engine bots, or publish under https, or password-protect all content, but that's dodging the issue: I'm denying permission to Phorm, not whole categories of traffic. Hence, the only genuine option offered is send an e-mail to website-exclusion@webwise.com.

Actually, don't. As a commenter on the El Reg article notes, the Home Office's opinion (not legal advice, just opinion) is more accurately stated as "there MIGHT be a case of implied consent ONLY IF there are not explicit terms denying consent".

Hence, it may be worth adding a notice to one's website, perhaps on a 'terms & conditions' page. Nicholas Bohm of Fipr has drafted the following recommended text:

PHORM PROHIBITED
The contents of this site, and communications between this site and its users, are protected by database right, copyright, confidentiality and the right not to be intercepted conferred by section 1(3) of the Regulation of Investigatory Powers Act 2000. The use of those contents and communications by Internet Service Providers or others to profile or classify users of this site for advertising or other purposes is strictly forbidden.

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