Abstract
The saga of Phorm’s Webwise behavioural targeting system, has been fraught with problems: legal challenges, technical disputes, serial campaigning, police action, EU action, smear campaigns and propaganda. Until the spring of 2009 it had looked as though Phorm would succeed, with the UK government firmly behind it, three of the biggest ISP’s planning to use its service, an endorsement of sorts from noted privacy advocates and guarded approval from the Information Commissioner’s Office. Then, however, things began to fall apart, and by the autumn of 2009 Phorm’s business model was in tatters. Why did this happen, and what lessons need to be learned? This chapter looks at the Phorm saga through the lens of Symbiotic Regulation, and suggests that Phorm’s apparent failure has been a result of their failure to understand the complexity of the regulatory matrix. In particular, Phorm underestimated the views of user-groups and digital rights advocates – and the influence and effect those views could have. The saga has many losers – as well as Phorm itself, the UK government and the ISPs all come out the worse for wear. This chapter suggests how much of this could have been avoided.
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Notes
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- 2.
The theory behind this symbiosis is set out in P. Bernal. Web 2.5: The Symbiotic Web. International Review of Law, Computers & Technology 24 (2010): 25–37
- 3.
- 4.
- 5.
J. Turow et al. Americans Reject Tailored Advertising and Three Activities that Enable It. (Annenberg: University of Pennsylvania, 2009), particularly p. 3
- 6.
R. Clayton, The Phorm “Webwise” System (2008). http://www.cl.cam.ac.uk/~rnc1/080518-phorm.pdf:
- 7.
Ibid. p2
- 8.
N. Bohm, The Phorm “Webwise” System – a Legal Analysis.” Foundation for Information Policy Research, 2008
- 9.
Ibid. pp. 3–11
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Ibid. pp. 11–12
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Ibid. p. 16
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Quoted in the Evening Standard, 6th March 2008, at http://www.thisislondon.co.uk/standard-home/article-23449601-web-users-angry-at-isps-spyware-tie-up.do;jsessionid=D5AA1541C91446314EAD7013363AB159
- 14.
See “Web creator rejects net tracking” at http://news.bbc.co.uk/1/hi/technology/7299875.stm
- 15.
See for example http://www.theregister.co.uk/2008/09/22/bt_phorm_police_drop/
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See for example http://cryptome.org/ho-phorm.htm.
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BERR’s reply to Commissioner Reding was not made public, but BERR did disclose to The Register the key points, which were then published on the Internet at http://www.theregister.co.uk/2008/09/16/phorm_eu_berr/
- 27.
- 28.
See for example http://www.isba.org.uk/isba/news/657
- 29.
In a live webchat on Phorm’s own blog. See http://www.webwise.com/how-it-works/transcript_080311.html
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- 38.
All Party Parliamentary Communications Group (apComms), “Can we keep our hands off the net?” Report of an Inquiry by the All Party Parliamentary Communications Group, October 2009. http://www.apcomms.org.uk/uploads/apComms_Final_Report.pdf
- 39.
Ibid. p21
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The directive, labeled PE-CONS 3674/09, modifies Directives 2002/22/EC and 2002/58/EC (the ePrivacy Directive) and Regulation (EC) No 2006/2004. It is available at http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf
- 47.
The Interactive Advertising Bureau (IAB) Europe and publishers’ trade body the European Publishers’ Council (EPC), quoted in http://www.out-law.com/page-10550
- 48.
- 49.
The business that became Phorm began as 121 Media, an ‘adware’ company whose products were labeled by many, including F-Secure, as spyware.
- 50.
See J. Turow et al. Americans Reject Tailored Advertising and Three Activities that Enable It. (Annenberg: University of Pennsylvania, 2009)
- 51.
For a summary of how Beacon worked from Facebook’s perspective, see the launch press release at: http://www.facebook.com/press/releases.php?p=9166
- 52.
Facebook abandoned Beacon on 21st September 2009. See http://www.wired.com/images_blogs/threatlevel/files/facebook_beacon_complaint0812081.pdf
- 53.
Action has been taken against Google StreetView in some countries – Switzerland is one example, see http://www.techradar.com/news/internet/swiss-take-legal-action-over-google-street-view-650241, while in Japan there are concerns about the misuse of images – see http://www.searchenginejournal.com/google-street-view-in-japan-faces-various-complaints/13048/ – but Google StreetView appears to have been accepted in most countries.
- 54.
StreetView has had more problems since – in May 2010, for example, it was the center of a controversy surrounding the way that StreetView cars had been “harvesting data” from people’s wifi networks (see http://news.bbc.co.uk/1/hi/technology/10122339.stm) – but those problems have largely been unconnected with the basic principle of the service, and show little sign of halting the success of the service.
References
All Party Parliamentary Communications Group (apComms), “Can We Keep Our Hands off the Net?” Report of an Inquiry by the All Party Parliamentary Communications Group, October 2009. Available at: http://www.apcomms.org.uk/uploads/apComms_Final_Report.pdf
Bernal, P.A. “Web 2.5: The Symbiotic Web.” International Review of Law, Computers & Technology 24 (2010), 25–37
Bohm, N. “The Phorm “Webwise” System – a Legal Analysis.” Foundation for Information Policy Research, (2008). http://www.fipr.org/080423phormlegal.pdf
Clayton, R, “The Phorm “Webwise” System” (2008). http://www.cl.cam.ac.uk/~rnc1/080518-phorm.pdf:
Murray, A. D. The Regulation of Cyberspace: Control in the Online Environment, Milton Park, Abingdon, UK, 2006; New York, NY, Routledge-Cavendish.
Turow, J., King, J., Hoofnagle, C. J., Bleakley, A. & Hennessy, M. “Americans Reject Tailored Advertising and Three Activities that Enable It.” Annenberg: University of Pennsylvania, 2009. Available at SSRN: http://ssrn.com/abstract=1478214
Note: All web references throughout the article accessed 18th May 2010
Acknowledgements
This paper is based on research for my doctorate funded by the Arts and Humanities Research Council.
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Bernal, P. (2011). Rise and Phall: Lessons from the Phorm Saga. In: Gutwirth, S., Poullet, Y., De Hert, P., Leenes, R. (eds) Computers, Privacy and Data Protection: an Element of Choice. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-0641-5_13
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