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11 March 2008

From: Watkin Simon <Simon.Watkin@homeoffice.gsi.gov.uk>
To: "'ukcrypto@chiark.greenend.org.uk'" <ukcrypto@chiark.greenend.org.uk>
Subject: Targeted Online Advertising
Date: Tue, 11 Mar 2008 18:02:53 -0000

> On Behalf Of Nicholas Bohm
> Sent: 11 March 2008 4:58 PM
> I now have a copy of a Home Office note dated January 2008.  My source
> reports that Simon Watkin said that
> it could be distributed to whomever the source thought would like to see
> it.  It is not uninteresting.
> It is, however, in the form of a pdf of a scanned image, and is 1 MB, so
> I don't propose to circulate it.  If someone would offer to host it
> somewhere, and better still host a version converted to text, I'll
> provide a copy.

It says this:


Targeted online advertising enables ISPs, web publishers and advertisers to
target consumers with contextually and behaviourally relevant messages based
upon real time analysis of users' browsing behaviour, and done anonymously
without reference to any personally identifiable information.  Equally it
offers ISPs' users an enhanced user experience in terms of the advertising
and marketing they may be exposed to.

2. This note offers informal guidance on issues relating to the provision of
targeted online advertising services.  It should not be taken as a
definitive statement or interpretation of the law, which only the courts can


** Do targeted online advertising services involve the interception of a
communication within the meaning of sections 2(2) and 2(8) of the Regulation
of Investigatory Powers Act 2000 (RIPA)? **

3. The meaning and scope of interception of communications is set out in
sections 2(2) to 2(8) of RIPA. 
4. Section 2(2), RIPA reads: "a person intercepts a communication in the
course of its transmission .... if, and only if he ...... so monitors
transmissions made by means of the system ...... as to make some or all of
the contents of the communication available, while being transmitted, to a
person other than the sender or intended recipient".

5. Section 2(8), RIPA reads: "... contents of a communications are to be
taken to be made available to a person while being transmitted ... [in] any
case in which any of the contents of the communication, while being
transmitted, are diverted or recorded so as to be available to a person

6. The provision of a service to deliver targeted online advertising will
tend to involve a person (an ISP and/or a targeted advertising provider on
behalf of an ISP) monitoring transmissions made by means of a relevant
telecommunications system so as to make some of the contents of a
communication available, while being transmitted, to a person (the ISP
and/or the targeted advertising provider) other than the sender or intended
recipient of the communication.

7. Targeted online advertising services operate by delivering a cookie,
including a unique user identity (UID), to an internet service user's
computer which supports the advertising service.  The UID is processed
automatically in a closed system (which does not associate an IP address
with the UID).  The system performs an analysis of URLs and key words from
web pages which allocates the UID to relevant advertising categories.  Once

this analysis is completed the URLs and key words are deleted from the
system.  The system then uses that analysis to match advertisers' criteria
and to enable ISPs' users to be targeted with advertising based on their
browsing interests (which includes web pages viewed, search terms entered
and responses to online advertisements).

8. For the purposes of section 2(2) and (8), "available" is likely to be
taken to mean that a person could in practice obtain those contents for
examination.  Processing of the contents of a communication under human
control will be likely to be regarded as having been made "available" to a
person and will therefore have been intercepted within the meaning of RIPA.

9. Where the provision of a targeted online advertising service involves the
content of a communication passing through a filter for analysis and held
for a nominal period before being irretrievably deleted - there is an
argument that the content of a communication has not been made available to
a person. 

10. Where the provision of a targeted online advertising service involves
storing and processing the content of a communication in circumstances where
it would be **technically possible** for a person to access the content that
can be regarded as having been "diverted or recorded so as to be available
to a person subsequently". This might include circumstances involving a
proxy server analysing the request to view a web page, in the course of it
being downloaded, and presenting the user with the web page and targeted
advertising content.  

11. Where the technology involves the user's browser executing a script to
download targeted advertising content to complement a previously or near
simultaneous download of a web page, it can be argued that the transmission
of a communication ceased at the point the web page reaches the user's
browser, that the end user's computer is not part of the telecommunications
system and that the communication has not been made available to a person
**while being transmitted**.


** To the extent that targeted online advertising services might involve
interception of communications, can they be offered lawfully without an
interception warrant in accordance with section 3 of RIPA? **

12. Section 3, RIPA, where relevant to targeted online advertising, creates
two situations in which interception without a warrant may be lawful:
section 3(1), interception with consent and section 3(3), interception for
purposes connected with the operation of the telecommunications service. 

13. Section 3(1), RIPA, provides that: "conduct consisting in the
interception of a communications is authorised if the communication is one
which, or which that person has reasonable grounds for believing is,
**both**: (a) a communication sent by a person who has consented to the
interception; **and** (b) a communication the intended recipient of which
has so consented."
14. The provision of a targeted online advertising service to an ISP user
who has consented to receive the service should be able to satisfy section
3(1)(a).  Each service will have its own relevant user agreements.  Where

consent to receive targeted advertising is included in the user's contract
and the user should be alerted to the possibility of opting out of the
targeted online advertising service at regular intervals, 3(1)(a) is
arguably satisfied. 

15. A question may also arise as to whether a targeted online advertising
provider has reasonable grounds for believing the host or publisher of a web
page consents to the interception for the purposes of section 3(1)(b).  It
may be argued that section 3(1)(b) is satisfied in such a case because the
host or publisher who makes a web page available for download from a server
impliedly consents to those pages being downloaded.  

16. Section 3(3), RIPA, provides that: "(3) Conduct consisting in the
interception of a communication is authorised by this section if: (a) it is
carried out by or on behalf of a person who provides a ...telecommunications
service; and (b) it takes place for purposes connected with the provision or
operation of that service ..."

17. The provision of a targeted online advertising service, contracted by an
ISP as part of the service to the ISP's users, can probably be regarded as
being carried out "on behalf of" the ISP for the purposes of section

18. It is arguable that a targeted online advertising service can be
"connected with the provision or operation of [the ISP] service".  The RIPA
explanatory notes for section 3(3) state: "Subsection (3) authorises
interception where it takes place for the purposes of providing or operating
a postal or telecommunications service, or where any enactment relating to
the use of a service is to be enforced. This might occur, for example, where
the postal provider needs to open a postal item to determine the address of
the sender because the recipient's address is unknown."
19. Examples of section 3(3) interception, very relevant to the provision of
internet services, would include the examination of e-mail messages for the
purposes of filtering or blocking spam, or filtering web pages which provide
a service tailored to a specific cultural or religious market, and which
takes place with user's consent whereby the user consents not to receive the
filtered or blocked spam or consents (actively seeks) a service blocking
culturally inappropriate material.  The provision of targeted online
advertising with the user's consent where the user is seeking an enhanced
experience and the targeted advertising service provides that.

** Conclusion **

20. Targeted online advertising services should be provided with the
explicit consent of ISPs' users or by the acceptance of the ISP terms and
conditions.  The providers of targeted online advertising services, and ISPs
contracting those services and making them available to their users, should
then - to the extent interception is at issue - be able to argue that the
end user has consented to the interception (or that there are reasonable
grounds for so believing).   Interception is not likely to be at issue where
the user's browser is processing the UID and material informing the
advertising criteria.

21. Where targeted online advertising is determined and delivered to a
user's browser as a consequence of a proxy server monitoring a communication
to download a web page, there may be monitoring of a communication in the
course of its transmission.  Consent of the ISPs' user and web page host
would make that interception clearly lawful.  The ISPs' users' consent can
be obtained expressly by acceptance of suitable terms and conditions for the
ISP service.  The implied consent of a web page host (as indicated in
paragraph 15 above) may stand in the absence of any specific express

22. Targeted online advertising can be regarded as being provided in
connection with the telecommunication service provided by the ISP in the
same way as the provision of services that examine e-mails for the purposes
of filtering or blocking spam or filtering web pages to provide a
specifically tailored content service.

22. Targeted online advertising undertaken with the highest regard to the
respect for the privacy of ISPs' users and the protection of their personal
data, and with the ISPs' users consent, expressed appropriately, is a
legitimate business activity.  The purpose of Chapter 1 of Part 1 of RIPA is
not to inhibit legitimate business practice particularly in the
telecommunications sector.  Where advertising services meet those high
standards, it would not be in the public interest to criminalise such
services or for their provision to be interpreted as criminal conduct.  The
section 1 offence is not something that should inhibit the development and
provision of legitimate business activity to provide targeted online
advertising to the users of ISP services. 

January 2008

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