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UK government misses crucial EU deadline on internet privacy

he UK Home Office has missed a crucial European Commission (EC) deadline, which required a government response to several critical legal and Internet / ISP privacy concerns. These were originally raised by its inability to act against the controversial Phorm behavioural advertising system.

Phorm worked with UK broadband ISPs ( BT , TalkTalk and Virgin Media ) to develop a system that would monitor what websites you visit for use in targeted advertising campaigns. However it has since become somewhat muted after its major broadband ISP backers effectively put their plans on ice last year.

The controversy over Phorm initially arose after it emerged in 2008 that BT had run two secret trials of Phorm's technology on customers, without their consent, during 2006 and 2007. So began a lengthy campaign against Phorm and related technologies, which many likened to being little different from Spyware or even wire tapping.

In October last year the European Commission (EC) opened a second phase of its infringement proceeding against the UK concerning a lack of full privacy and personal data protection (here). This was directly related to Phorm, the potential misuse of Deep Packet Inspect (DPI) technology and BT's secret trials.

The Commission identified three gaps in the existing UK rules:

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 proceeding subsequently gave the UK two months to respond or it could risk being referred to the European Court of Justice. Suffice to say, the Home Office has missed their end of December 2009 deadline.

The Home Office has declined to comment on the situation after an inquiry was made by The Register , though it did add that they were "continuing to engage with the Commission on this issue." It's not uncommon for deadlines in governments to be missed and thus the EC is likely to give the UK a little extra breathing room before taking further action.

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