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An analysis of the BT covert trials of Phorm technologies in 2006/2007

# May 1, 12:14 PM by ahanff

Quite by accident, it would seem that my name has become synonymous with the debate over Phorm. When I initially started my own research into Phorm several months ago, it was for the purpose of evaluation based on my interests and academic work on the subject of privacy. As an undergraduate student I have spent the majority of my time writing about issues such as Privacy in the 21st Century and Biometric Fingerprinting of School Children; so it is no surprise that I would find the Phorm debate to be relevant to my studies.

I never would have imagined that 3 months on I would be publishing my dissertation on a legal analysis of the trials, neither would I have imagined that I would play such a key role in the debate as a representative of the informed public. However, that is exactly what has happened.

On April 15th 2008 I was invited to attend a public meeting as part of the Privacy Impact Assessment being carried out by 80/20 Thinking on the Phorm issue. I was originally intending to attend as a member of the audience, but at the last minute I was asked if I would be willing to be a guest speaker in order to represent the key issues being raised in the public domain.

I will confess I was more than a little nervous, given I only received the invite at 4:30am on the day of the meeting and had lectures to attend in the morning before travelling to London for the meeting. This left me precious little time to prepare any sort of speech and given the company I would sharing the podium with, it was important for me to relay the public concerns as comprehensively and professionally as possible.

I discussed the issues relating to the right to privacy under Human Rights law as well as people being offended by the prospect of being profiled and productised. I outlined the concerns of content owners and web site publishers and how their rights under the Regulation of Investigatory Powers Act 2000 must be upheld; and I talked about the importance of explicit informed consent from all parties.

As a result of that speech, I was invited by the BBC to be interviewed on their technology news program called “Click”, which airs on the BBC World network. The show will be broadcast this weekend in the UK on BBC News 24 at 11:30am on Saturday (repeated the same time and place on Sunday). This was a more difficult environment as it was just myself, Phorm’s CEO and the BBC production crew; so I had no visible audience supporting me with visual queues of agreement.

I won’t go into the interview in detail as people will be able to see for themselves when it airs this weekend, but again I discussed the right to privacy, the validity of Phorm’s untested product in a competitive market, the issue of trust and many of the other topics which are discussed on a daily basis in forums such as this one at Cable Forum.

I have also been in communication with the Earl of Northesk and have been invited to attend a meeting with him in person during the next couple of weeks. Many of us have been encouraged by the responses we have seen from the Earl of Northesk on this issue, including replies to emails from members of the public and his direct questioning of Parliament in his official capacity as a peer in the House of Lords. I will keep you all updated on the meeting as more information becomes available.

Now as mentioned at the beginning of this article, I never expected that I would be publishing my dissertation on a legal analysis of Phorm, but today I am doing exactly that. I am a technologist and a soon to be qualified sociologist, I have no background in law other than my own personal interests, but in order to write academic papers for sociology, it is often necessary to interpret law and public policy.

Many people have read working drafts of the paper and I have been promising for some time to complete it, but with everything else that has been going on, it has taken until now to fulfil that promise.

The paper focuses on the covert trials of 2006/2007 and draws on the research and opinions of Dr Richard Clayton, Mr Nicholas Bohm and the Home Office to name just a few. I must extend my gratitude to Mr Nicholas Bohm in particular for taking the time and effort to read the draft and provide me with some valuable insight and feedback; as many readers of this article will know, Mr Bohm is highly respected in this field so his opinion is one to be respected. Below is the abstract of the paper, readers who wish to read the entire document can do so here.

Abstract
In 2008 BT PLC made public statements admitting to running covert trials of Deep Packet Inspection technologies for the purpose of behavioural profiling; the trials included more than one hundred thousand of their customers during 2006 and 2007. Key public authorities, privacy experts, the press and the public have voiced concerns over whether or not the trials were legal. The controversy rests in whether or not the trials constituted unlawful interception of communications as a result of not obtaining informed consent from relevant parties.

This paper analyses a wide range of legislation including but not limited to: Regulation of Investigatory Powers Act 2000, Fraud Act 2006, Privacy and Electronic Communications (EC Directive) Regulations 2003 and Data Protection Act 1998 – in order to investigate the requirements with regards to consent, the core issue of this debate.

After careful analysis of relevant EU and UK laws, statutes and directives it can be interpreted that fundamental legal requirements were not met, making the covert trials illegal under criminal law and unlawful under common law. As such it is recommended that the relevant public authorities should officially investigate the matter in the interests of public justice.

I hope the paper clears up some of the questions many people have asked and helps to move the issue beyond debate and into the court room, in order for the victims of the trials to receive justice and to send a clear message to corporations that they are neither above the law nor invisible to it.

Our Human Rights must be protected at all costs, if we fail in that task the future of democracy is at risk. Furthermore we must as a country and as individuals engage in issues relating to privacy in order to teach future generations the value of our Human Rights, otherwise these rights will be eroded to the point where they have no value.

Alexander Hanff

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