UPDATE 1:48pm: The CPS has decided not to prosecute Phorm or BT, please see the bottom of this article for further updates. The Crown Prosecution Service (CPS) is to send a potentially crucial letter to Alexander Hanff (Privacy International) today that could reveal whether BT or Phorm will be prosecuted over their secret 2006/2007 trials of a Spyware style Deep Packet Inspection (DPI) technology.

Phorm's DPI solution, which tracked the private website visits of BT's customers for use in targeted (behavioural) advertising campaigns, was used by the ISP several times over the period and without gaining express consent from broadband users.

Mr Hanff had originally begun pushing for the CPS to investigate in 2008. This followed a decision by the City of London Police (CoLP) not to pursue the case. The CoLP concluded 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).

It's understood that Mr Hanff was sent a "very formal" email last night by the CPS, which had the following subject title: "Request for consent to prosecute alleged offences under section 1 of the Regulation of Investigatory Powers Act 2000".


However, the CPS have already delayed their decision several times before and it would not come as a huge surprise if they did so again. The detective involved is also the same one who looked at the original CoLP complaint, DS Barry Murray, which could cause some privacy advocates to have doubts about the outcome.

Part of the problem is not only the technical complexity, with trying to understand precisely how Phorm's system works, but also the many varied and often conflicting laws involved. This is precisely why the EU has had to force (here) the UK government into toughening up its Regulation of Investigatory Powers Act 2000 (RIPA) (here).

Meanwhile Phorm itself has long since given up on the UK because many of its initial ISP supporters, including BT, eventually shelved their plans. This followed a lengthy campaign against Phorm and related technologies. We will provide a further update later.

UPDATE 1:48pm

Alexander Hanff has posted a full copy of the letter online, which states that the CPS will not prosecute. We've posted several key extracts below.


We may have some further updates and quotes to post soon..

UPDATE 2:16pm

Privacy advocate Alexander Hanff has offered up his official response.


Hanff also told ISPreview.co.uk exclusively of his fear that the outcome could potentially, "open the floodgates for [phorm style] commercial DPI in the UK as all a company has to do is get a legal opinion which says this is ok to avoid prosecution". In fairness, legal opinions do carry some weight.

UPDATE 2:58pm

A spokesperson for BT Retail told ISPreview.co.uk that they were, "pleased with the decision not to prosecute." Nothing more.