Updated The Home Office today defended advice it gave BT and Phorm that their "Webwise" agreement to track millions of broadband subscribers will probably be legal if consent is obtained.
Meanwhile, it has emerged that neither BT nor Phorm sought any government advice on the wiretapping trials conducted in autumn 2006 and summer 2007. The lack of notice was confirmed to campaigners by Home Office Regulation of Investigatory Powers Act (RIPA) expert Simon Watkin.
The Foundation for Information Policy Research (FIPR), which has carried out detailed technical and legal analysis of the proposed system, wrote to the Home Secretary Jacqui Smith yesterday to urge her to withdraw the advice it gave in February this year. FIPR's open letter (pdf) said: "Your department's note can now be seen to be significantly incomplete and dangerously misleading."
FIPR argues that Phorm is disingenuously using the Home Office's advice to claim legitimacy. A legal counterpoint to the note, written by FIPR's chief counsel Nicholas Bohm, charges that - notwithstanding BT and Phorm's two secret trials in 2006 and 2007 - the final system will break wiretapping, fraud and data protection laws designed to protect the public.
In a statement, the Home Office emphasised that the note should not be taken as gospel by anyone. It said: "We can't comment on the legal position of targeted online advertising services. It is up for [sic] the courts to interpret the law.
"We did prepare an informal guidance note. It should not be taken as a definitive statement or interpretation of the law, which only the courts can give. It wasn't, and didn't purport to be, based upon a detailed technical examination of any particular technology."
A spokesman said the department would not be making any direct statement on FIPR's call for it to withdraw the advice. It provided this general comment:
Working to protecting [sic] the public, we can help industry understand the threats to public safety from emerging technologies and achieve a workable balance between commercial and public safety interests.
We welcome companies sharing commercially sensitive ideas and proposals with us in confidence if that means public safety considerations and legal obligation [sic] can be taken into account, where appropriate, in the conception of new products and services.
Ultimately it is a free commercial market and providers of goods and services need only ensure they are compliant with relevant legislation.
Read on for details of political manouvering to make BT accountable for the secret trials...