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UPD Crown Prosecution Service to Rule on UK ISP BT and Phorm Privacy Invasions

Posted: 28th Oct, 2010 By: MarkJ
lawphorm logoAccording to reports, the Crown Prosecution Service (CPS) will rule in November 2010 on whether or not to charge either Phorm and or BT over the broadband ISPs secret 2006/2007 trials of the technology.

Phorm controversially worked with UK broadband ISPs to develop a system that would monitor what websites you viewed for use in targeted advertising campaigns, though many likened its service to little more than Spyware.

In particular BT angered both customers and privacy campaigners alike when it emerged that they had run two secret trials of Phorm's technology on customers, without their consent, during 2006 and 2007. This trial appeared to contravene privacy laws and caused no end of bad press for BT and any other ISPs involved.

Part I (Communications) of the Regulation of Investigatory Powers Act 2000 (RIPA) makes it an offence to intercept a communication, except in special circumstances, without the consent of your customer(s).
3 Lawful interception without an interception warrant [sample quote only]

(1) Conduct by any person consisting in the interception of a communication is authorised by this section 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.
(2) Conduct by any person consisting in the interception of a communication is authorised by this section if— .
(a) the communication is one sent by, or intended for, a person who has consented to the interception; and .
(b) surveillance by means of that interception has been authorised under Part II.
A report on The Register states that, by the time of its announcement next month, the CPS expects to have spent just £5,250 investigating the case. That's actually a surprisingly small amount for such a notoriously complicated endeavour.

Privacy campaigner Alexander Hanff originally began pushing for the CPS to investigate at the end of 2008. This followed a decision by the City of London Police (CoLP) not to pursue BT's secret trials. The CoLP bizarrely stated that such an investigation would have been too costly, too complex and those taking part in the trials were curiously deemed to have given their implied consent (here).

In relation to this, the European Commission (EC) recently demanded that the UK toughen its Data Protection Authority powers so that it complies with the EU's 1995 Data Protection Directive (95/46/EC).

UPDATE 28th October 2010

Forgot to mention that the CPS instructed the same detective who looked at the original CoLP complaint, DS Barry Murray, to investigate their case against Phorm too. Make of that what you will.
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