Home » 

UK ISP News Archives

 » 
Sponsored Links

UPD3 CPS Will Not Prosecute Phorm or BT over UK ISP Customer Privacy Invasions

Posted: 08th Apr, 2011 By: MarkJ
internet lawbt phorm uk logoUPDATE 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".

Alexander Hanff, Privacy International, said:

"Just had an email from the CPS, they are sending me a letter [TODAY] which suggests a decision on [Phorm]. [I] am excited but at the same time thinking about the next stage if they decide not to prosecute, Judicial Review would be the next stage.

Let's just hope the CPS have decided to prosecute so this entire sorry affair can finally be sorted out."

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.

CPS Letter Extracts

We have considered this matter fully and in accordance with both stages of the Full Code Test under the Code for Crown Prosecutors. We have decided that this is not an appropriate case for the Director of Public Prosecutions to grant his consent to a prosecution.

...

The results of these enquiries have been carefully considered and there is still insufficient evidence to commence a prosecution against BT or Phorm. The position is:
(i) There is insufficient evidence currently available to satisfy the evidential stage of the Full Code Test.

(ii) The broad extent of the alleged criminality can be determined.

(iii) A fully formed assessment of public interest is possible at this stage.
It is apparent that very considerable further work of investigation would be necessary if further consideration of the evidential stage were to take place.

...

Even if the evidential stage was satisfied, it would also be necessary to satisfy the public interest stage. Even if the case proceeded and a conviction obtained, this would not be likely to result in a significant sentence.
(i) The suspects took a considerable amount of legal advice prior to commencing the trial.

(ii) The trial was planned; there is insufficient evidence to suggest that there was pre-meditation to commit an offence (Code 4.16). Legal advice was obtained both by BT and Phorm.

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

UPDATE 2:16pm

Privacy advocate Alexander Hanff has offered up his official response.

Alexander Hanff said:

"Obviously I am very angry at the CPS decision. The same police officer who carried out the investigation on the original complaint I made to City of London Police, ran the CPS investigation (which I objected to as soon as I discovered that to be the case) and the decision of the CPS is basically the same as his original decision, although it is 4 pages longer and uses longer words.

The CPS have acknowledge there was an offence and they have acknowledged their is also an ECHR issue (Art 8) yet they have decided not to prosecute because it is not in the public interest and there was no criminal intent (exactly the same arguments used in the original CoLP complaint).

My argument is that wholesale interception of the nations communications for commercial gain is absolutely a public interest issue and refusal to prosecute undermines confidence in our entire judicial system; it paints a very clear picture that big business is above the law.

Now I have to decide what to do with it - over 900 days since the CPS complaint was made so that is a lot of time and obviously I have progressed onto other issues since then. That said, I will look into the possibility of a judicial review and also will be considering the process of filing a complaint against the CPS under HRA and if that fails, ECHR. The difficulty is, any further action requires substantial financial investment which i currently have no budget for, so I need to address that issue first.

I should add that although I work for Privacy International, the Phorm issue is not undertaken on behalf of PI, it is my own private work."

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.
Search ISP News
Search ISP Listings
Search ISP Reviews
 Latest UK ISP News
 Cheapest Superfast Broadband ISPs
  • Hyperoptic £17.99
    Speed 33Mbps, Unlimited
    Gift: None
  • UtilityWarehouse £19.99
    Speed 35Mbps, Unlimited (FUP)
    Gift: None
  • NOW £23.00
    Speed 63Mbps, Unlimited
    Gift: None
  • Vodafone £24.00
    Speed 73 - 82Mbps, Unlimited
    Gift: None
  • Shell Energy £24.99
    Speed 38Mbps, Unlimited
    Gift: None
Large Availability | Compare More ISPs
 Cheapest Ultrafast Broadband ISPs
  • Gigaclear £15.00
    Speed: 150Mbps, Unlimited
    Gift: None
  • Zzoomm £19.95
    Speed: 150Mbps, Unlimited
    Gift: None
  • YouFibre £19.99
    Speed: 150Mbps, Unlimited
    Gift: None
  • Community Fibre £21.00
    Speed: 150Mbps, Unlimited
    Gift: None
  • BeFibre £21.00
    Speed: 150Mbps, Unlimited
    Gift: £25 Love2Shop Card
Large Availability | Compare More ISPs
Cheapest Superfast ISPs
  • Hyperoptic £17.99
    Speed 33Mbps, Unlimited
    Gift: None
  • UtilityWarehouse £19.99
    Speed 35Mbps, Unlimited (FUP)
    Gift: None
  • NOW £23.00
    Speed 63Mbps, Unlimited
    Gift: None
  • Vodafone £24.00
    Speed 73 - 82Mbps, Unlimited
    Gift: None
  • Shell Energy £24.99
    Speed 38Mbps, Unlimited
    Gift: None
Large Availability | View All
Cheapest Ultrafast ISPs
  • Gigaclear £15.00
    Speed: 150Mbps, Unlimited
    Gift: None
  • Zzoomm £19.95
    Speed: 150Mbps, Unlimited
    Gift: None
  • YouFibre £19.99
    Speed: 150Mbps, Unlimited
    Gift: None
  • Community Fibre £21.00
    Speed: 150Mbps, Unlimited
    Gift: None
  • BeFibre £21.00
    Speed: 150Mbps, Unlimited
    Gift: £25 Love2Shop Card
Large Availability | View All
Helpful ISP Guides and Tips
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
»
Sponsored Links
The Top 20 Category Tags
  1. FTTP (5410)
  2. BT (3491)
  3. Politics (2499)
  4. Openreach (2279)
  5. Business (2227)
  6. Building Digital UK (2218)
  7. FTTC (2039)
  8. Mobile Broadband (1943)
  9. Statistics (1766)
  10. 4G (1641)
  11. Virgin Media (1595)
  12. Ofcom Regulation (1439)
  13. Wireless Internet (1380)
  14. Fibre Optic (1380)
  15. FTTH (1379)
  16. 5G (1217)
  17. Vodafone (1128)
  18. EE (1112)
  19. TalkTalk (927)
  20. O2 (918)
Sponsored

Copyright © 1999 to Present - ISPreview.co.uk - All Rights Reserved - Terms  ,  Privacy and Cookie Policy  ,  Links  ,  Website Rules