Police investigation into BT's 2006 and 2007 Trials (Crime Reference 5253/08)

On Tuesday 2nd September 2008 City of London Police questioned BT about the Trials: "City of London police questioned BT earlier this week as part of a probe into the covert wiretapping and profiling of the internet use of tens of thousands of BT customers during tests of Phorm's adware system." The City of London Police's crime reference number for this was 5253/08.

On Monday 22nd September 2008, City of London Police stated that they would not open a criminal investigation into the BT Trials because there was no criminal intent on behalf of BT and Phorm, and there would have been a level of implied consent from BT's customers. They also suggested that redress could be sought from the Office of Surveillance Commissioners, even though this organisation only has jurisdiction over surveillance carried out by public authorities. BT is not a public authority.

Crown Prosecution Service Complex Casework Centre Investigation

On 25th November 2008, NoDPI reported that the case was being reviewed by Andrew Hadik of the Crown Prosecution Service Complex Casework Centre. NoDPI began a campaign to get people to write to the Complex Casework Centre urging them that it was in the public interest to prosecute BT for their covert trials of Phorm's technology in 2006 and 2007.

On 29th November 2008, in an article headlined CPS investigates BT over internet trials, the Daily Telegraph reported that:
The Crown Prosecution Service (CPS) is investigating claims that BT broke privacy laws by using an internet advertising system with the potential to track and record every website visted by its customers."

Crown Prosecution Service declines to prosecute

On Friday 8th April 2011, more than two years after the case was passed to them, the UK Crown Prosecution Service announced that they would not consent to a request from an individual to begin a prosecution of BT Group Plc and Phorm Inc in relation to alleged unlawful interception of internet browsing data.

The CPS's conclusions were questionable:

• They stated that there was insufficient evidence. Yet the leaked report of BT's 2006 trial is publicly available and BT has publicly confirmed its authenticity. Speaking on Channel 4 on 3rd April 2008 Emma Sanderson, BT's Head of Value Added Services publicly admitted that BT had been intercepting communications. Very substantial further evidence is available if needed.
• They stated that BT acted in good faith. Yet BT had an opportunity to stop trials of Phorm after public debate about its illegality arose in April 2008. Instead, between October and December 2008 BT continued trials of the software with no consent from websites, and with an inadequate request for consent from users.
• They implied that loss or harm has to be demonstrated for an offence to have taken place. Yet under RIPA there is no necessity to demonstrate significant detriment, only that an unwarranted interception has taken place.
• They stated that a nominal penalty would not be significant. Yet even a nominal penalty would clearly establish the legal principle that society will not tolerate eavesdropping on communications.

Their statement contained factual inaccuracies:

• They stated that the Home Office had provided informal advice that advised that Phorm's use was unlikely to be contrary to section 1 of RIPA. Yet the Home Office's advice included the phrases "it may be argued" and "it is arguable" when considering the interception from the positions of website and user respectively. Moreover the Home Office's advice made it clear that express consent should be obtained from users. In the 2006 and 2007 trials BT did not ask for or obtain consent from either websites or users.
• They stated that the trial was of limited application. Yet the 2006 trial involved around 10,000 households. The 2007 trial may have involved up to 108,000 households.
• They repeated the Information Commissioner's Office's statement that there was "no evidence to suggest significant detriment to the individuals involved". At least one BT subscriber, Stephen Mainwaring, suffered significant detriment and was paid damages by BT. It is not clear how many others suffered economic damage but many who did may not have been aware it was caused by BT and so may not have sought redress. Others may have suffered damage not measurable in economic terms.

Their statement contained some irrelevant diversions:

• Their description of how Phorm's software worked focussed on its use of cookies and did not mention interception. The basis of the complaint was not the creation of cookies but the interception of communications.
• They used the Information Commissioner's Office's statement that there was "no evidence to suggest significant detriment to the individuals involved" to support the conclusion that there should be no prosecution under RIPA. The Information Commissioner only has responsibility for the Data Protection Act and PECR, and has no responsibility for RIPA.

Their statement appeared to set some unusual legal precedents:

• They stated that BT and Phorm received considerable legal advice (though evidence to support this has never been made public). Poor legal advice is not normally an acceptable excuse.
• They stated that it could be reasonably argued that any offending was the result of an honest mistake or genuine misunderstanding of the law. Ignorance of the law is not normally an acceptable excuse.

As a result, it is unlikely that the criminal complaint has yet reached its conclusion.