back to article BT could face criminal case over Phorm trials

The Crown Prosecution Service has revealed that it is working with a top barrister on a potential criminal case against BT over its secret trials of Phorm's targeted advertising system. Almost two years to the day since we revealed BT had covertly intercepted and profiled the web browsing habits of tens of thousands of its …

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Pirate

Oh argh!

Have pitchfork and firebrand at the ready. Just need the address of BT castle.

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What's the complexity

They're guilty as sin, they've never denied they intercepted customers data without informed consent.

Good to hear it's finally happening, nothing to do with an impending election I'm sure.

Now where did I put that black cap and the damn rope.

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Unhappy

Private prosecution

The complexity comes in the form of one giant issue; The police weren't going to pursue charges against BT (even though it's not their job to say as such, or even to do as such). What happens now is CPS do their investigation and ascertain whether there is sufficient evidence to make conviction likely. If they decide that there is, they prosecute. If not, they drop the case. The only way to go from there is into private prosecution, which means that instead of CPS prosecuting (as is the way in >99.9% of criminal trials) it is left to a private entity to take the place of the Crown.

This is by no means the end of the process, though. CPS can *again* become involved and take over the case. They then have the choice of pursuing the charges on behalf of the plaintiff (so the case again becomes R. vs) or dropping the case for a second time as it is "not in the public interest." You can't stop CPS from getting involved if it chooses to.

There is only one legal way to see justice done in the latter case; Drop BT in its entirety. However, that in itself isn't guaranteed; The failing banks got bail-outs during the financial downturn, why not the UKs largest telecoms operator?

We might be on a loser with this one. I sincerely hope not, though.

(By the way, the only two ways I can get broadband are either ADSL over a BT line, or DSL over Virgin-owned cable. Either way I get a shafting. At least with BT lines I can make use of LLU to get a different ISP, but I still end up giving them money. With Virgin doing their DPI trials for "copyright enforcement" they don't get a penny from me.)

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Private Prosecution

This is already a "private prosecution". I wrote to the Director of Public Prosecutions asking for permission to commence with a private prosecution after the City of London Police refused to presecute the complaint I made to them in the summer of 2008. That complaint included a copy of the internal BT Report on the 2006/2007 trials along with a detailed complaint highlighting and referencing all the different sections of the report which I believed were in breach of the law. As well as referencing the report I also referenced the relevant sections of UK law that the trials failed to comply with.

The thing with RIPA is, in order to commence with a private prosecution you have to get the permission of the Director of Public Prosecutions (DPP) - it is a special condition of RIPA - it is also a requirement that any prosecution under RIPA must be carried out by the CPS (at least that is what I was told by the DPP).

The DPP agreed to my request but because it has to be prosecuted by the CPS they got the case. So it is a private prosecution that is not really a private prosecution.

The irony here is yet to come.

The CPS explained to me that the City of London Police had to investigate the case for them. So the case went back to the same police officer who "investigated" my original police complaint back in summer 2008. This is the same police officer who thought that RIPA only applies to public authorities -not- companies and also confessed to being a technophope with no technical knowledge. The very same officer who refused to pass the case to the CPS in the first place.

So it is a jolly old merry-go-round.

However, the CPS assure me that the officer in charge is doing a stand up job and has this time consulted with experts and obtained expert evidence (as was highlighted again in the article).

I will be sure to let you all know the second I get a conclusive answer from the CPS on this debacle - hopefully that will be soon, but I was told that a month ago. The only sensible thing to do is to apply the law, it sets a very bad example if they don't and just makes the public believe that there is no justice when it comes to big companies.

Of course if they refuse to prosecute, I will have to consider a judicial review and then perhaps even push it to the European Court of Human Rights. I can't take BT to the ECHR but I can certainly take a public authority to the ECHR.

Even if they refuse to prosecute there are plenty of option to pursue yet.

Alexander Hanff

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Not a technical argument

The government will back BT to the hilt. Why ? Our power industry is, aside from Centrica, is now entirely foreign owned. UK ownership of the Water industry has been eroded. In Telecomms - O2, Orange etc. are foreign owned - we still have Vodafone and BT. If BT is weakned then foreign competition will benefit - less corporation tax for HMRC.

So don't get your hopes up, BT have a lot of influence (hence the landline 50p/month tax) and they can afford very very expensive lawyers - nothing will happen.

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Grenade

Re: Not a technical argument.

The government *is* backing BT to the hilt. ISTR the EU courts can only take action if either the local judicial processes decline to get involved or may only move in in the wake of a (failed) local action if they can show good reason why the local legislation is inadequate.

Without this prosecution the EU would be free to step in and nail them to the cross. With it, it's being dealt with under local jurisdiction and their hands are tied. Watch carefully for this prosecution "failing to proceed due to matters of the public interest", being dismissed for lack of evidence or resulting in a slap on the wrist.

There's no Yank involvement here, so no danger of this strategy going all British Aerospace on them.

I'd be prepared to take a punt on BT having lobbied to get this to go ahead!

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FAIL

Don't forget Drax

The biggest power station in Britain is still British-owned (well, listed on the LSE which is what people usually mean by that). As is National Grid; and (technically) British Energy, the largest generator in the UK, is 20% owned by Centrica (though I'll give you the other 80% is owned by the frogs).

And then there's the fact that we have British companies like International Power which own foreign power stations which must have some sort of "offset" effect in your measure of Britishness...

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Scottish and Southern

Scottish and Southern Energy (Southern Electric, Scottish Hydro, SWALEC and Atlantic brands) is British owned. They are the 2nd biggest supplier in the UK.

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It's not as if BT stands for British Telecom is it?

BT stands for - erm - overcharging, inflexible, monopolistic, money-grabbing, scum-sucking knuckle-dragging parasites.

Seriously BT is the company's name, not an abbreviation. It's about as patriotic as BAe.

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Corporation Tax

Corporation Tax is payable if they are owned by a UK company or not...

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Go

Never mind BT / Phorm..

What about Vergin Media and similar ISPs who are using DPI to illegally wiretap their customers internet traffic..?

This case, if it goes ahead, should not be a token prosecution to keep Brussels happy, but the first step on the long road to strengthening UK privacy law.

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Huzzah!

...that is all

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Happy

Brilliant!

I hope they throw the book at them! Although I don't think it will be an instant win, it's nice to see something actually being done about this farce...

Who do BT think they are - the government!? =)

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Alert

The sooner the better

I can't wait. It's been 500 days since this was first reported to the competent (?) authority, City of London Police, and it's been like watching a game of pass the parcel since then. Let's stop the music, now, and get BT execs to FACE it instead. In the dock. The law was broken, private communications were illegally intercepted, website copyright was abused, and privacy was breached. Just get on with it please - let's have our day in court.

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Grenade

Phuck em.

We can only hope that Keir Starmer will feel that the law should be applied to the biggest as it does to the smallest. That the biggest corporations cannot be allowed a 'no intent' defence if your average joe is not permitted to use it against, say, a speeding conviction. The LAW is the LAW if it is broken a price must be paid. BT's defence of it 'not using the data' is just like a speeder saying 'no one got hurt' it is NOT acceptable.

I see no reason why we the UK taxpayer should be on the receiving end of a EU fine for not upholding EU privicay laws and letting BT get away with what they have done. I know that in the end every BT Customer will pay the price for there geeed/error of judgement.

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so?

so what if they did?

the taxi driver I used yesterday knows what supermarket i go to , but i'm not upset about it.

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Weak

How would you feel if he sold the information on your movements?

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He knows because you knowingly told him right?

He didn't follow you around, watch what brand of coffee you bought and then offer to sell the info to advertisers.

Not the same thing at all.

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Lame

Or turned up at your door at the same time the following week expecting to take you on the same journey, or maybe sent one of his mates..?

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Big Brother

Guilty

I don't see why they need a senior barrister, the law is quite clear and BT clearly broke it.

BT should plead guilty, pay a huge fine and a few execs do some jail time.

Then we can move on to Virgin.

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Questions put to MP, with answers

Just for info:

I sent a letter to my MP about this a while back, and got a reply a couple of days ago.

Here is an extract from my letter, showing the questions I asked:

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Ms Reding [EU commissioner for information society and media] has demanded that the UK government remedy deficiencies in legislation that have enabled seemingly-illegal activities by BT to remain uninvestigated, and gave a deadline of the end of 2009 for a response to be provided by the UK government.

My first question is therefore:

What response has the UK government given to Ms Reding on this issue? Will legislation be updated as requested and will BT be investigated?

My second question is:

Will updates in legislation confirm the internet traffic interception and inspection being performed by Detica, currently under contract to Virgin Media, an illegal activity? This interception and inspection is being used to provide a pseudo-anonymous (note: not fully-anonymous) profiling of the amount of illegal filesharing being conducted on Virgin Media's networks. It should be noted that no RIPA provisions appear to permit this activity.[2]

----------------------

The answer I got was:

----------------------

Regarding your two specific questions: I understand from enquiries with colleagues that the British government has not yet formally responded to the EU Commissioner for Information. It is planned that a formal response will be issued in due course. I am further told that the reason for delay is that informal discussions are taking place between the UK and EU on exactly how to implement the EU's recommendations. I'm sorry that I cannot be more specific on these points at this time, as I have no further information about these discussions. Furthermore, I can confirm that there are no plans to amend legislation in the current Parliamentary year. This is because we must wait for the outcome of the discussions with the EU, and there is no Parliamentary time available for new legislation before the election. A new Queen's Speech will be tabled after the election which may well include the legislative amendments you have asked about.

Your second question relates to investigations of private companies. I'm afraid I am not permitted to pass comment on this matter. Criminal investigations are solely a matter for the CPS and OFT, and Government is strictly forbidden from interfering in the judicial process. The Government can neither initiate nor suspend such investigations. It will, of course, be dependent upon whether the necessary amendments to legislation which you have referred to are passed into law.

I'm sorry I cannot be more help at this time, but please be assured I will bear your comments in mind on this issue.

-----------------------

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Unhappy

MP>/dev/null

I wrote to Alistair Carmichael MP about the impending EU deadline, no response.

I've been checking his parliamentary questions via TheyWorkForYou.com, no mention of BT.

So no vote from me, sorry mate!

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a title is required

"Criminal investigations are solely a matter for the CPS and OFT, and Government is strictly forbidden from interfering in the judicial process. The Government can neither initiate nor suspend such investigations. "

HA! Bet that came as a shock to BAe then, didn't it? (NOT)

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They're obviously guilty

"After the trials, BT and Phorm sought advice from the Home Office over whether their planned national deployment would be legal under RIPA. Officials gave the opinion - since disputed - that it would be if customers gave consent."

By deduction then, the trials were illegal, as customers did not give consent. And BT didn't ask for advice before the trials, either.

2 + 2 = guilty, surely? No number of brown paper envelopes stuffed with cash could help them wriggle out of that one.

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Grenade

Well done Alex!

Alex Hanff can feel proud of this, along with everyone else who has campaigned to keep this issue live and kicking, especially Chris Williams at El Reg.

As the poster above says, Virgin had better tread carefully...

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Heart

Here here!

and all that...

Reg with halo icon please!

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FAIL

CPS

"legally and factually complex"

Since this issue is neither of these things, I have little faith in a reasonable decision by CPS.

The fact that BT intercepted their customers' communications without permission is not in dispute. Neither is the goverment's advice that this behavior would be legal only with customer's permission, something which BT admits they did not obtain. How much LESS complex does it need to be for CPS to understand it?

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Anonymous Coward

Necessary but not sufficient

customers can't give consent on behalf on the website owners and individuals the are communicating with. Both parties to a communication have to consent for interception to be legal.

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What about Phorm?

Pursuing criminal charges against BT is well and good, but what about Phorm? Do they just slink away quietly under the rock from which they first emerged and avoid prosecution? Technically BT are responsible for the monitoring of private communication, but Phorm read/handled stolen data/goods.

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Damn right!

I'd like to see Ertugrul banged up so he can learn about the importance of privacy first hand when he visits the showers!

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Nomen est omen ?

Ertugrul ... is is just me or is there a positively Sauronish ring in that ?

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Stop

Phorm are included in the complaint

I included the same complaints against Phorm as I did against BT as Phorm were complicit in the trials. The investigation includes both parties as far as I am aware.

Alexander Hanff

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Alert

If the Phuckers go to jail

They'll do a roaring business with all the free phone cards they take in with them.

D

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Anonymous Coward

Correction

"After the trials, BT and Phorm sought advice from the Home Office over whether their planned national deployment would be legal under RIPA."

I think, if you were aware of the contents of this meeting, you'd have to say that BT and Phorm *gave* advice to the Home Office.

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Flame

"Legally and factually complex" - my arse

Their software and their servers stopped people typing and did stuff with it, before the actual servers that were intended to receive it had chance. That is called interception. As it is information we are communicating outside of our presence. It is being communicated, it would class as interception of communications.

Though the CPS are using the same logic as the ICO replying to me when my MP finally got a reply back.

"The people will not understand the technical implications of this matter so we are not going to prosecute"

I think it is a step before the EU hit us hard, a simple

"Look, we are doing what you want guv." Statement to Brussels.

As long as they go through with it and not just go through with the motions.

Next step Virgin.

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Grenade

Can someone on here actually say.....

They've been negatively impacted by the trial ?

Not once have I read any examples of "My life was ruined because BT ran a trial that showed me an advert for a pony instead of the XXX porn I'm used to"

BT got burned in the media, they backed off. Other companies dropped form too. Time for people to get a grip and stop whinging. Criminal investigations are just spunking public money over a bank account for a smug lawyer. Money that would be better used elsewhere.

Some people need to remove their head from their backside and stop forcing my tax money to be wasted on an investigation into a scrapped project that caused no real casualties other than BT's PR.

Handgrenade - cause those referenced in the previous paragraph will no doubt justify the waste of tax payers money...

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WTF?

Not the point

BT broke the law, regardless of the negative impact. They need to be brought to justice just like anybody else would when they committed a crime.

If you broke the law by drink-driving, but didn't crash into anything or kill anyone, do you think you'd get away with the same "doesn't matter" attitude? When the rozzers pulled you over, you wouldn't try saying "stop wasting my tax money arresting me when I caused no real casualties other than my own embarrassment".

No, didn't think so.

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Stop

Somewhat disingenuous

Not once have I read any examples of "My life was ruined because BT ran a trial that showed me an advert for a pony instead of the XXX porn I'm used to"

It's not about the advertising, most people will accept that adverts are a fact of life and, like it or not, they are what pays for most of the internet.

It's about the fact that BT collected potentially detailed information on what people were using the internet for. It is their job to carry the IP packets from your home to their destination and vice versa, in much the same way it is the job of the Royal Mail to carry letters and packages from post boxes and post offices, via sorting centres to homes and businesses.

People would be up in arms if RM started opening letters in transit, taking notes on who sent them and their contents, and then resealing them and sending them on their way. This is analogous to what BT have done.

To stretch your faulty analogy, it is as if someone at RM had opened your unmarked envelope containing XXX porn and inserted adverts for ponies into your dirty mags and then resealed them. Really, you wouldn't be fussed about the adverts for ponies, you'd be more worried that someone now knew you liked horsie porn. There's then the added bonus that they could pass that info onto your local constabulary and you'd get arrested under extreme porn laws.

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Anonymous Coward

Personally ...

... I have never been "negatively impacted" by murder, but I'm still against it.

The best (only) way to stop these telcos from flirting with interception for profit is to make the threat of time in the Clink very real. The best way to do that is to put a few execs there very soon.

Pour encourage les autres.

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Big Brother

@The Guv

Either your work for BT or Phorm, or you sir are technically known as "an idiot"(tm)

Its incredible you fail to see what they did is so wrong. You have so totally proved you have missed everything discussed in the media (and to great extents and so many times on The Register) and as a result, your lack of insight is utterly jaw dropping. Its frankly ignorant people like you who are allowing governments to become ever more corrupt, simply as your kind are too spineless to act and to closed minded and ignorant to ever see any political implications of allowing such widespread spying on a whole population in a supposedly free country! (How the hell you can't see that is jaw dropping!).

I could write so much in reply to your astounding lack of insight and understanding of the kind of people who want this technology and forever want to spy to personally gain from spying, but you have already shown you are too close minded to read enough to give you the insight you need to even partly understand what so many people on this site are so angry about. What BT and Phorm have set out to do is so Narcissistic and morally corrupt that its astounding they could be that lacking in empathy towards everyone else.

If you still fail to understand then try reading some history and psychology and then come back and apologize for being so apathetic and ignorant that you are frankly part of the problem!

@”Time for people to get a grip and stop whinging. ”

Its time fools like you finally woke up!

(Yes Guv, my words are harsh, because its about time (more than time!) the gloves were finally taken off for the few like you who still fail to understand so much and act like a drag factor on every attempt to speak out against the relentless control freaks who want to void so many rights that took centuries to create to prevent state interference in peoples lives!). Do you still not get it?!

Guv your attitude is frankly an insult to so many who fought (and even some who died) throughout history to give us rights you ignorantly fail to see or defend! Its incredible you fail to understand!

What is it going to take to get through to some people!. Its astounding that some still fail to get it after so much already. Do they live in a cave? Have they never seen a book? Its astounding that some still fail to get it! :(

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About damn time.....

Good, and then the Government proposal for DPI'ing us all will also be denied.

If I can't collect info from people without their knowledge then neither can BT..

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"The Way We Work"

Is a page where Livingston claims that he and all his BT colleagues work with ethics, integrity and in line with the law. How does secret and illegal testing fit in with that?

I would love to see BT and Phorm execs in court. Livingston, Ertugrul, Galvin, Vahidi all held to account. I'd love to see them do time for their involvement in this affair. Somehow I doubt that will happen because this smacks of the "government" trying to dodge getting caned by the EU. "Let's just look as if we're doing something and maybe the EU will leave us alone..."

You need a Shane Warne icon because at the end of the day this, whilst sounding like good news, is probably just spin. Actually, not a Warne icon - he was a (damn) good spinner. Rawl Lewis would be a better choice.

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..and following that

...Can the CPS examine the relationship between the BBC and Sage analyst? I mailed The BBC when noscript picked it up about 18 months ago and asked if they could explain why data was being sent to the states.. Clearly too busy looking up their own fundaments , they didn't feel compelled to provide an answer. Why would a non-profit making body be off-shoring the data of it's visitors ?

And why do quasi-governmental and ex government controlled organisations like BT and the BBC believe it is permissable for them to act like an covert arm of the state?

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Anonymous Coward

Put in ..

.. a Freedom of Information request to the BBC.

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Just hoping...

New Labour's most patronising politician, Patricia Hewitt, will be dragged in front of the court.

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FAIL

@The Guv

You are taking an ironic position here aren't you?

Or are you also in favour of not prosecuting ANY crime where no harm is done?

In which case, I think that is 99% of parking tickets gone (with lack of evidence of specific harm), all speeding which doesn't result in an accident, drunk driving on the same basis. After all by your own measure systemic harm is not sufficient, specific harm is required.

Some things are crimes because of the potential for harm - not necessarily because of harm done, and this is one such crime.

We have privacy laws because if large corporations, and the state are allowed unbridled access to the secrets of their customers/citizens they have a 100% record throughout history of abusing that power.

In the case of corporations, over/monopoly charging is generally the outcome, in the case of states, totalitarianism.

Of course because you have no sense of history, no awareness of the wider world, and apparent faith in 'the authorities' you will decry me as a tin foil hat wearing loony.

Believe me, we tin foil hat wearing loonies sincerely hope you are right, but fear you are simply uninformed.

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Big Brother

BT and *Phorm* should absolutely face CRIMINAL charges

From the initial headline I was so happy to hear action was finally being taken against BT. By half way through the article, I was feeling they are basically telling us what we wanted to hear and by the end I'm left feeling nothing has changed, and its wide open to be swept under the carpet by the likes of the Mandelson and his friends in high places. :(

BT and Phorm should absolutely face CRIMINAL charges over this case.

Its time to utterly bury them all so badly in legal action that their like will never again be seen in our *supposedly free* democratic country. (I say *supposedly free*, because we all know the rich and powerful in politics and business have utter contempt for all us Proles, but lets just hope there is enough anger against BT and Phorm to finally make a difference and get some action for a change.

As for "The European Commission is currently considering taking the government to court in Luxembourg over UK authorities' failure to take any action against BT or Phorm."

That just sums it up. Our government is very likely to be just telling everyone what we all want to hear with no real intention of punishing BT, hoping it'll all blow over, because ultimately our government wants to use that spying technology.

I've also noted that action is against BT and not discussed by them about taking action directly against Phorm. Why isn't Phorm being utterly destroyed. They created this technology with the express intention of using it to spy on everyone. Our ruling elite must think we are all too stupid to see Phorm have strong links with the politicians, who quietly want to exploit Phorm style technology to spy on everyone.

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Good

But as others have noted *might* be a smokescreen tactic to avoid the EU prosecuting BT and the UK govt themselves.

Don't break out the champagne just yet however. This is still a *long* way from the court.

However were one to apply the standards used on say someone hacking the Pentagon computer network guilt standard (Yes I did it) then the CPS should be gearing up for court toot suite.

AFAIK BT have *admitted* the act already. I'd say that qualifies for a 90% probability of conviction.

And it still leaves the pestilential Phorm to ply their trade. The problem is it is *such* a seductive idea for hard pressed ISP executives to raise easy money. No thinking required. Large bonuses and trebles all round.

I fear that only some truly medieval level punishment applied to various senior Phorm staff will effectively discourage this sort of thing in future.

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Anonymous Coward

Might I be the first to say..

KILL THE PIG!

SPILL ITS BLOOD!

KILL THE PIG!

(etc)

Sorry, I feel better now. I hope BT get reamed a new one for this shameful charade, and China Lion agrees. Good times, I love it.

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Grenade

And for my next trick.

So the home office covers up criminal activity by a major british telcom company. The Information Commissioner makes a ruling then removes all evidence of it from the planet. The government then started to jerk off the regulators in europe. If the CPS do prosecute then I already know the verdict

This will be another inquest.

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