UK government threatened by EU over Phorm

Complaints by the Open Rights Group and others last year to the European Union Commission about Phorm, the technology that looks inside web traffic to profile users for advertising, have now resulted in further legal threats against the UK government from by the EU.

Yesterday, the EU restated their position that the UK was not complying with EU law in three areas:

Specifically, the Commission has identified three gaps in the existing UK rules governing the confidentiality of electronic communications:

• There is no independent national authority to supervise interception of communications, although the establishment of such authority is required under the ePrivacy and Data Protection Directives, in particular to hear complaints regarding interception of communications.
• The current UK law – the Regulation of Investigatory Powers Act 2000 (RIPA) – authorises interception of communications not only where the persons concerned have consented to interception but also when the person intercepting the communications has ‘reasonable grounds for believing’ that consent to do so has been given. These UK law provisions do not comply with EU rules defining consent as freely given specific and informed indication of a person’s wishes.
• The RIPA provisions prohibiting and providing sanctions in case of unlawful interception are limited to ‘intentional’ interception only, whereas the EU law requires Members States to prohibit and to ensure sanctions against any unlawful interception regardless of whether committed intentionally or not.

The UK has two months to reply to this second stage of the infringement proceeding. If the Commission receives no reply, or if the response presented by the UK is not satisfactory, the Commission may refer the case to the European Court of Justice.

This is quite unusual. For instance, threats of infraction proceedings against UK for non-compliance with the EU definition of ‘personal data’ have been dragging on since 2004, without any real sign that the UK would be taken to court. The case is certainly not the subject of regular press releases.

The UK government meanwhile is not making any comment, and Freedom of Information requests are being turned down.

If you want to help get a positive resolution, why not write to the Home Secretary, Alan Johnson; and his shadows, Chris Grayling (Con) and Chris Huhne (LD).