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10 June 2008, 09:21

BT off hook for secret Phorm trials

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The Office of the Information Commissioner (ICO) has decided not to take BT to court over its secret trials of the Phorm personalised web advert serving system. The trials, conducted in 2006 without the consent of BT broadband users, have created huge controversy. Several prominent privacy and security experts have stated that the trials were unlawful, and cast doubt on the legality of the Phorm service itself.

According to the ICO, BT kept the trial secret because they were merely technical feasibility tests. BT cannot apparently identify the several thousand unwitting participants as they were selected at random and no personal information about them was stored or retained. However the secrecy was more likely an intentional part of the test regime – a BT technical report of the trials apparently stated "The customers who participated in the trial were not made aware of this fact as one of the aims of the validation was not to affect their experience."

This decision by the ICO comes as something of a surprise in the immediate aftermath of the Parliamentary Home Affairs Committee report on surveillance in society. In his evidence before that committee Richard Thomas urged government to curb its demands for data gathering. Nevertheless in the case of Phorm he seems to be satisfied that the public's privacy concerns are unfounded, despite substantial and organised public resistance to the system. However, the ICO has ruled that the service, including any future trials, must be "opt in" rather than "opt out" as presently proposed. This may require significant changes to the way Phorm is implemented – at present it expects an "opt out" cookie for every user of a participating ISP who does not want to use the service.


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