In light of criticism from the EU, will the UK government enact a new law on internet privacy or simply brazen it out once again?
Nothing is going well for the Phorm behavioural advertising system this week. The EU commission has started legal action because the UK hasn’t regulated it properly, and now Amazon are joining LiveJournal, mySociety and others in demanding an immediate end to the monitoring of traffic to their websites.
The Phorm system learns your interests by snooping on your internet web traffic. Your ISP does the necessary wiretap in exchange for a cut when advertisers pay a premium for learning precisely what to try and sell you. It’s rather like the postman getting money to peek at your letters, so you can receive a better class of junk mail.
It’s hardly necessary to use the language of privacy, because the law says it’s illegal to intercept internet traffic without permission from both ends of the link. However, legal niceties don’t seem to have worried BT, the UK’s largest ISP. They’ve spent years trying to get the technical kinks out of the system. Last autumn’s trial was half-way legal (or as lawyers say, completely illegal) because they finally asked one end of the link (their customers) for permission; a nicety they ignored in earlier secret tests.
Naturally people have been complaining; to the information commissioner, to the interception tribunal and to the police. The first two don’t think it’s their bailiwick, and the City of London police refused to act; apparently because BT didn’t really intend to do anything wrong – a novel legal theory, which I assume they will be dusting off again after recent tragic events.
Frustrated, the complainers have headed for Brussels, where for the first time they got a serious hearing. The commission saw that EU law was broken and swapped letters with Whitehall. They responded that no UK statute was infringed, either in the recent trial where half the necessary permission was sought, or in the earlier totally secret regimes.
Brussels has believed what they were told – which is not as disappointing as it sounds, for yesterday they took the first steps towards dragging the UK before the European court for a failure to correctly implement EU law and prevent illegal interception. They’re also, to their particular credit, concerned about the process issues, and want to know why there is no institution in the UK tasked with dealing with companies performing illegal interception.
So Whitehall now has to decide whether to enact a new law, or to reread the one we already have and write back contritely to Brussels. Sadly, history suggests they’ll just brazen it out until a European court rules against the UK once again. Our current wiretap laws result directly from adverse judgments in Malone (1984) and Halford (1997). So, as they say in legal circles, Whitehall’s got form.