I apologise if this has already been posted, I've been trying to keep up with this thread but with so many posts it's been a bit difficult!
I am sure most of you will have already seen the legal analysis by out-law.com (run by law firm Pinsent Masons) which Phorm are praising in their blog(
http://www.out-law.com/default.aspx?page=9090). And to quote Phorm... "The article makes the important distinction between the letter and spirit of the law". Well... you could 'imply' (don't phorm just love that word?
) a lot from that statement (like phorm are admitting that it is illegal?).
anyway...
A few things jumped out at me from their analysis. (bold emphasis is mine and not in the original article)
Point 1...
Quote:
Canon could instruct Phorm to deliver adverts for its latest digital camera to anyone who visited a web page identified by Canon as giving a glowing review the previous week. It can narrow that request even further: Canon can tell Phorm only to deliver the ad to anyone who read that review and also visited more than two other pages that mentioned the model name, e.g. IXUS 970, within the past three day
s.
I put this hypothetical to Phorm. It stressed that Canon would have to provide at least 10 URLs in its targeting instructions, not just one review page.
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Am I missing something here? How can they achieve this without storing a users browsing history? (even if in the cookie on the users machine)
Point 2...
Quote:
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There are certainly good things about Phorm. First and foremost, it never knows who you are, it can't find out and it has no record of where you've been.
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See point 1.. a contradiction? It MUST be able to know where you've been in order to satisfy the advertisers targeting rules?
Point 3...
Quote:
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"Before you say 'do we target children?' – no, we do not do that either," he said.
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See point 2... how can they not target children if they do not know who you are?
Now their legal analysis...
Quote:
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Google implies the consent of every site that it visits, examines, indexes and copies to its cache. That has been challenged in a US court – and Google won the case by running the implied consent argument.
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This argument fails yet again, for the obvious reason that everyone already knows, google see's only publicly accessable pages, phorm will profile everything, hidden pages and paid for content aswell.
Quote:
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What about Phorm scanning your Hotmail account? Surely that's more personal? Except that it won't scan Hotmail – Phorm has a blacklist of sites that won't be monitored and Hotmail is on it. That list, according to Phorm, runs to 500 sites and counting.
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Again, we all know this point is invalid. What about webmail that is not indexed by search engines (I run webmail for a few domains I own for example which are not listed in any search engine).
Quote:
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The Home Office has already said that targeted online advertising like Phorm's can comply with RIPA, provided there is consent. (FIPR says the advice is misleading and should be withdrawn.)
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As we all know the home office 'advice' was essentially withdrawn and before their article was posted.
Further down their piece the mention some more of the issues raised and I guess to some degree agree that they are illegal but in their opinion nothing will ever be done about it.
Far be it from me to criticise a law firm on their interpretation of the law, they are far more qualified than me, but the article suggests to me that they do not fully understand the concerns/implications that have been raised (or are ignoring them... read on). They simply say that even though it's 'technically' illegal they'll just get away with it (they seem to imply that these are "minor transgressions").
I was quite shocked to read this from a law firm but then it becomes apparent in their update at the bottom of the article....
Quote:
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Three readers have also noted that Pinsent Masons is one of the firms on BT's legal panel and asked me to disclose that relationship on this page. The firm is on BT's legal panel though we didn't advise on Phorm. As a large commercial law firm we are on lots of companies' legal panels.
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Now it becomes a little clearer... and to be honest, quite shocking (and I didn't think any more of this would shock me!) Is it worth getting in contact with out-law.com or would the effort be futile?
Again apologies if this has already been posted, but it's a little difficult to keep up with it all.
Regards...
T