Exclusive City of London Police have decided not to formally investigate BT and Phorm for their allegedly illegal secret ISP-level adware trials, arguing that there was implied consent from customers and it would be a waste of public money.
Officers in London's financial district were handed a dossier of evidence against the two firms by campaigners who protested at BT's annual shareholder meeting at the Barbican in July. Then early in September BT Retail executives were informally questioned by detectives over their covert testing of Phorm's system on tens of thousands of internet connections in 2006 and 2007.
That meeting formed part of the basis of a report to senior officers, who have now decided to drop police interest in the trials, which were revealed by The Register.
In an email to Alex Hanff, the anti-Phorm campaigner who compiled the dossier handed to City of London Police, detective sargeant Barry Murray wrote:
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.
Hanff said he was very disappointed with the decision and would be making a complaint.
In February the Home Office advised BT and Phorm (after they had conducted their two secret trials) that the technology to intercept and profile broadband subscribers' internet usage is covered by the Regulation of Investigatory Powers Act (RIPA), which governs wiretapping. Simon Watkin, a civil service expert on RIPA, said the system could be legal, however, if consent was obtained. During the trials no attempt to gain that consent was made, however.
Murray's email continued:
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.
Nicholas Bohm, lead counsel at the technology law think tank the Foundation for Information Policy Research branded the police's explanation "pathetic". Earlier this year he wrote an in-depth legal analysis of Phorm's technology that argued that it breaks several criminal laws, especially if there is no consent.
He said: "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."
BT declined to comment. Its third ISP-level adware experiment - this time with customer consent - is now more than six months overdue.
The European Commission is now the last authority that could move against BT and Phorm, or punish UK authorities for their failure to enforce privacy regulations. Responsibility for enforcing those rules belongs to the Information Commissioner's Office. In letters to BT earlier this year, obtained under the Freedom of Information Act, it agreed with the firm that its was too difficult to explain to customers what the trials were about, and said it did not intend to pursue the matter.
Commission lawyers are currently analysing the UK government's explanation of why no action has been taken. Last week the Department for Business, Enterprise and Regulatory Reform said it believes future Phorm deployments can be legal, but refused to make public what it told Brussels about the secret trials. ®