The Crown Prosecution Service is close to settling on whether to prosecute anyone over BT and Phorm's secret interception and profiling of internet traffic.
Prosecutors have disclosed they plan to announce their decision at the end of November, following an investigation lasting more than two years. They are deciding whether to press criminal charges against unnamed individuals under Part I of the Regulation of Investigatory Powers Act, which makes interception an offence except in special circumstances.
When The Register revealed in 2008 that BT had twice trialled Phorm's targeted advertising system on tens of thousands of its customers without permission, internet law experts, including the Foundation for Information Policy Research, argued the firms had acted illegally.
A decision to prosecute would be a bold move for the CPS, as police declined to formally investigate the affair. Following a complaint against BT and Phorm by privacy activist Alex Hanff, City of London Police said no offence had been committed because the firms did not have criminal intent.
Hanff then passed a file on the trials directly to the CPS. Its subsequent investigation has included reexamining City of London Police's treatment of the complaint and gathering opinions from independent experts.
According to its own guidelines, the CPS' decision whether to charge will be based on two factors. First, prosecutors judge whether the evidence against the defendant offers a realistic chance of conviction. Second, they decide if a prosecution would be in the public interest.
"Broadly speaking the more serious an alleged offence the more likely it will be that a prosecution is needed in the public interest," the guidelines say.
The CPS said (.doc) it anticipates it will have spent £5,250 investigating the case by the time it comes to a decision next month. If charges are brought, it will be the first known criminal case relating to interception of internet traffic.
Any prosecution under RIPA Part I is a rare event, with the best known example being that of the News of the World's former royal editor Clive Goodman and Glenn Mulcaire, a private investigator who helped him intercept voicemails. Both were jailed in 2006, for four months and six months respectively.
In an earlier prosecution, Demon founder Cliff Stanford received a suspended prison sentence for intercepting emails on a corporate server.
Regardless of the CPS decision on BT and Phorm, a separate legal action relating to the trials is ongoing. The European Commission is taking the UK government to court to force it to change the law, after the failure of any UK enforcement authority to take action exposed loopholes in privacy legislation. ®