The Crown Prosecution Service (CPS) have decided not to prosecute a case against BT and Phorm following a trial by the companies of technology which tracked users' web browsing without their knowledge or consent. The trial was believed to be in contravention of the Regulation of Investigatory Powers Act (RIPA) which makes it unlawful to intercept communications except in special circumstances.
The news came in the form of a letter to Alexander Hanff of Privacy International, who personally pushed the CPS to pursue the case against BT and Phorm. Insufficient evidence was stated as the reason why the prosecution could not be pursued, and "very considerable further work of investigation" would be required to change this. Expert evidence had been obtained to understand how the BT and Phorm technology worked, but they believed that obtaining more evidence wouldn't affect their assessment. The CPS also felt that the case would not be in the public interest to pursue. A full statement can be found on the CPS blog.
- The suspects took a considerable amount of legal advice prior to commencing the trial.
- The trial was planned; there is insufficient evidence to suggest that there was premeditation to commit an offence (Code 4.16). Legal advice was obtained both by BT and Phorm.
The suspects were in possession of authority or trust (Code paragraph 4.16n). The evidence does not suggest that they were seeking to specifically take advantage of that position.CPS in Letter to Alexander Hanff
Hanff is naturally disappointed by the announcement and is worried about what precedent this sets for other companies who may be able to hide behind the guise of gaining legal advice for any actions they take.
"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."Alexander Hanff, privacy campaigner
Hanff said he was considering filing for a Judicial Review and would look into whether he could file a complaint to the SRA about the legal advice the lawyers acting on behalf of BT and Phorm gave. This, therefore, looks like it might not be the end of this saga against Phorm which started in 2007 when users of the thinkbroadband forums discovered oddities with their BT Internet broadband connections.