City of London Police have decided not to pursue BT and Phorm over adware trials carried out last year citing implied consent. The Register uncovered the autumn 2006 trials of the Phorm system which was originally denied by BT, earlier this year. The Police were handed information about BT and Phorm from campaigners who protested at BT's annual shareholder meeting in July.
"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."E-mail to Alex Hanff (anti-Phorm campaigner) from City of London Police
FIPR, the Foundation for Information Policy Research deemed the Police findings as "pathetic".
"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."Nicholas Bohm, (Lead Counsel) FIPR
Hanff intends to make a complaint about the disappointing decision. It may be possible to pursue a case via the European Commission who are currently analysing the UK governments position on why the Information Commissioner's Office (who enforce privacy laws) did not take up a case against BT.
More information in the continuing Phorm saga can be found at The Register.