net.wars: Uninformed consent

by Wendy M Grossman | posted on 14 March 2008

Apparently the US Congress is now being scripted by Jon Stewart of the Daily Show.

Wendy M Grossman

In a twist of perfect irony, the House of Representatives has decided to hold its first closed session in 25 years to debate – surveillance. But it's obvious why they want closed doors: they want to talk about the AT&T case.

To recap: AT&T is being sued for its complicity in the Bush administration's warrantless surveillance of US citizens after its technician Mark Klein blew the whistle by taking documents to the Electronic Frontier Foundation (which a couple of weeks ago gave him a Pioneer Award for his trouble).

Bush has, of course, resisted any effort to peer into the innards of his surveillance program by claiming it's all a state secret, and that's part of the point of this Congressional move: the Democrats have fielded a bill that would give the whole program some more oversight and, significantly, reject the idea of giving telecommunications companies – that is, AT&T – immunity from prosecution for breaking the law by participating in warrantless wiretapping.

'Snot fair that they should deprive us of the fun of watching the horse-trading. It can't, surely, be that they think we'll be upset by watching them slag each other off. In an election year?

But it's been a week for irony, as Wikipedia founder Jimmy Wales has had his sex life exposed when he dumped his girlfriend and has been accused of – let's call it sloppiness – in his expense accounts. Worse, he stands accused of trading favorable page edits for cash. There's always been a strong element of Schadenpedia around, but the edit-for-cash thing really goes to the heart of what Wikipedia is supposed to be about.

I suspect that nonetheless Wikipedia will survive it: if the foundation has the sense it seems to have, it will display zero tolerance.

But the incident has raised valid questions about how Wikipedia can possibly sustain itself financially going forward. The site is big and has enviable masses of traffic; but it sells no advertising, choosing instead to live on hand-outs and the work of volunteers. The idea, I suppose, is that accepting advertising might taint the site's neutral viewpoint, but donations can do the same thing if they're not properly walled off: just ask the US Congress. It seems to me that an automated advertising system they did not control would be, if anything, safer. And then maybe they could pay some of those volunteers, even though it would be a pity to lose some of the site's best entertainment.

With respect to advertising, it's worth noting that Phorm, which we wrote about here two weeks ago is under increasing pressure. Earlier this week, we had an opportunity to talk to Kent Ertegrul, CEO of Phorm, who continues to maintain that Phorm's system, because it does not store data, is more protective of privacy than today's cookie-driven Web. This may in fact be true.

Less certain is Ertegrul's belief that the system does not contravene the Regulation of Investigatory Powers Act, which lays down rules about interception. Ertegrul has some support from a informal letter from the Home Office whose reasoning seems to be that if users have consented and have been told how they can opt out, it's legal.

Well, we'll see; there's a lot of debate going on about this claim and it will be interesting to hear the Information Commissioner's view. If the Home Office's interpretation is correct, it could open a lot of scope for abusive behaviour that could be imposed upon users simply by adding it to the terms of service to which they theoretically consent when they sign up, and a UK equivalent of AT&T wanting to assist the government with wholesale warrantless wiretapping would have only to add it to the terms of service.

The real problem is that no one really knows how Phorm's system works.

Phorm doesn't retain your IP address, but the ad servers surely have to know it when they're sending you ads. If you opt out but can still opt back in (as Ertegrul said you can), doesn't that mean you still have a cookie on your system and that your data is still passed to Phorm's system, which discards it instead of sending you ads? If that's the case, doesn't that mean you can not opt out of having your data shared? If that isn't how it works, then how does it work?

I thought I understood it after talking to Ertegrul, I really did – and then someone asked me to explain how Phorm's cookie's usefulness persisted between sessions, and I wasn't sure any more. I think the Open Rights Group is right: Phorm should publish details of how its system works for experts to scrutinize. Until Phorm does that the misinformation Ertegrul is so upset about will continue. (More disclosure: I am on ORG's Advisory Council.

But maybe the Home Office is on to something. Bush could solve his whole problem by getting everyone to give consent to being surveilled at the moment they take US citizenship. Surely a newborn baby's footprint is sufficient agreement?

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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).