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Out-Law News 1 min. read

US tracking company runs into Phorm-like storm


A US company offering traffic-tracking technology to ISPs who want to generate highly targeted advertising will face questions from the US Senate this week. Privacy advocates have said that use of the technology might break anti-spying laws.

NebuAd has said that its technology respects privacy and that it tells ISPs to seek subscribers' permission before implementing it, but a major ISP has suspended plans to use the system ahead of the Senate hearings.

The controversy is familiar to that generated when Phorm announced that it was working with UK ISPs on similar technology. BT and Virgin Media had both been in negotiations with Phorm about using the technology before a privacy backlash hit Phorm and the ISPs alike.

Citizens' rights pressure group the Center for Democracy and Technology has produced a report claiming that use of the technology could violate US anti-spying laws. "We conclude that the use of internet traffic content from ISPs may run afoul of federal wiretap laws unless the activity is conducted with the consent of the subscriber," said its report.

"When an ISP copies a customer’s communications or allows them to be copied by an advertising network, those communications have undoubtedly been  'intercept[ed]'," said the report. "Therefore, unless an exception applies, it seems likely that placing a device on an ISP’s network and using it to copy communications for use in developing advertising profiles would constitute illegal interception."

NebuAd yesterday announced that it has developed new online notifications for its system so that ISPs can let customers be informed about any use of it.

"NebuAd has developed a means to offer consumers direct, initial online notification and periodic reminders – thereby equipping users with more opportunities to make informed decisions about their web experience," said a company statement.

ISP Charter Communications has put its plans to test the technology on hold after being asked to do so by the chairman of the US's House Subcommittee on Telecommunications and the Internet Ed Markey.

"Any service which does not affirmatively subscribe and that can result in the collection of web-related habits and interests of a subscriber, or a subscriber's use of the operator's services, or the identification of an individual subscriber, and achieves any of these without the 'prior written or electronic consent of the subscriber' raises substantial questions," said Markey, a Democrat Congressman in his letter to Charter chief executive Neil Smit.

"We respectfully request that you do not move forward on Charter Communications' proposed venture with NebuAd until we have an opportunity to discuss with you the issues raised by this proposed venture," said Markey.

NebuAd will appear before the Senate committee investigating online privacy. The Committee will also discuss privacy with Facebook, Google and Microsoft.

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