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Police Drop Phorm Investigation Due to Complexity, Cost and Implied Consent

Posted: 23rd Sep, 2008 By: MarkJ
The City of London Police have decided not to investigate BT's secret 2006/2007 trials of the controversial Phorm advertising system, which works with ISPs to monitor what websites you visit for use in targeted advertising. DS Barry Murray informed Alex Hanff, a prominent anti-Phorm campaigner, about the move yesterday.

Writing in a letter to Hanff (NoDPI), Murray stated that such an investigation would have cost too much money, be too complex and those taking part in the trials were bizarrely deemed to have given their implied consent:

Mr. Hanff,

Just to let you know that a decision has been reached in relation to the allegation you made to the City of London Police in July 2008.

The matter will not be investigated by the City of London Police as it has been decided that no Criminal Offence has been committed. One of the main reasons for this decision is the lack of Criminal Intent on behalf of BT and Phorm Inc in relation to the tests. It is also believed that there would have been a level of implied consent from BT’s customers in relation to the tests, as the aim was to enhance their products.

The matter is considered a civil dispute, and your desire to elicit clarity around the wording of the relevant acts would necessitate senior Counsel involvement and it is thought this would be inappropriate for Police to use Public funds to pursue civil issues where there is no suggestion that Criminal Intent exists.

I know this is not the answer you were wanting to hear but some redress may be sought through the Complaint process available through the Office of Surveillance Commissioners. If you would like to discuss the matter further please E-mail me or phone me on [removed].

Many thanks,
Barry Murray

Naturally Hanff and many others have been less than pleased with the outcome, not least because of the Police's "implied consent" remark, which is not elaborated on. Certainly none of BT's customers gave the operator direct consent, as required by law, to have their online activity tracked and used in such a way.

The Register also has a comment from Nicholas Bohm, lead counsel at the Foundation for Information Policy Research (FIPR), a technology law think tank, whom describes the explanation as "pathetic":

He said: "City of London Police's response expresses massive disinterest in what occurred. Saying that BT customers gave implied consent is absurd. There was never any behaviour by BT customers that could be interpreted as implied consent because they were deliberately kept in the dark.

As for the issue of whether there was criminal intent, well, they intended to intercept communications. That was the purpose of what they were doing. To say that there was no criminal intent is to misunderstand the legal requirements for criminal intent.
"

Hanff has since responded to the police, noting that the Complaint process available through the Office of Surveillance Commissioners is only for dealing with public bodies and cannot be used to act against corporations.

The focus is now expected to switch back to European Commissioner Vivian Reding, whom now appears to be the last line of any real defence against Phorm's acceptance. She certainly has a tough job ahead, especially with the government having already told her that they believe Phorm to be legal (here).
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