Sorry if its been posted already, but the El Reg article indicates that a) the 'secret' trials ARE under invetstigation and more interestingly, VM seem to be backing off.
http://www.theregister.co.uk/2008/04...phorm_tougher/
"Virgin Media meanwhile says that despite Phorm's
claims to the contrary, it did not "confirm [an] exclusive agreement". A concerned customer was told by CEO Neil Berkett's office: "We haven't signed up with Phorm, we've expressed an interest."
"The ICO's tougher stance also means that as far as the ICO is concerned, BT and Phorm's secret and allegedly illegal trials without consent conducted in 2006 and 2007 are subject to investigation under DPA. A spokeswoman said more news on the probe will be forthcoming, but was unable to provide a timetable for when the tens of thousands who were tracked and profiled can expect to see those responsible held to account. BT has refused to answer questions on why it believes it acted within the law."