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back to article Prosecutors prep decision on BT-Phorm case

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 …

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Grenade

Part I of the Regulation of Investigatory Powers Act,

makes interception an offence except in special circumstances.

Does that include circumstances like: the regulater cant be bothered? or that BT had an influencial politician (and at the time cabinet minister) in their pocket? or that BT is too big to fail? (ergo have not failed/errrored)

They'll probably wheel out the usual 'not in the publics interest'. One thing I can be sure of, there is more public interest in this issue than where I might have parked my car or driven it too fast...

I think in this time of austerity that its about time that big corporates paid some big prices, time to wake up and pull your weight like everyone else has to.

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Re: AC and RIPA

The other reason why the City police might not have wanted to prosecute BT is that they rely on having a good working relationship with BT to investigate all sorts of other crimes.

But these days BT is supposed to be separate business units.

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Grenade

So the situation is

So the situation is that some unfortunate formerly "innocent until proven guilty" youngster gets charged, tried, and locked up for not revealing his encryption key for his PC.

While the BT and Phorm scum still look likely to get away scot free?

References for RIPA lockup mentioned above most welcome, as it has had little coverage.

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Alert

Stealth: Intent to Avoid Being Detected

With respect to the question of intent, it is clear from the leaked BT report covering the 2006 trial that BT did intent to covertly intercept the communications of their customers.

The fact that communications data was being deliberately captured and then processed for the purpose of advertising burys any assertion that it was in some way an accident or unintentional.

The report even used the term 'stealth trials'. They used stealth because they knew it was illegal:"The customers who participated in the trial were not made aware of this fact... Any deployment of PageSense will clearly require the user base to be informed".

BT did not intend to *get caught*.

Ian Livingston, in particular, must be prosecuted.

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Anonymous Coward

a title

'They used stealth because they knew it was illegal' or because they were conducting an impact assessment (which could be influenced by knowledge)

Anyway ignorance is not an excuse never has been and should never be, and intent is the difference between murder and manslaughter BOTH are illegal.

BT did Intend to collect the Data (if you believe them, Google did not. - wifi snooping issue) BT have never claimed that it was an accident or not intended, it was with purpose, but they did not know it was against the law because they are a bunch of muppets. this is not a reason to be let off. BT are old enough and big enough to have known better.

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RE: Stealth: Intent to Avoid Being Detected

Actually, AFAIK "intent" in this case is "They intended to do something", and that something was against the law.

This does not mean they "intended to break the law".

Ignorance of the law is no defence. It can be used in mitigation at sentencing, to reduce the sentence if they were unaware something was illegal.

The facts of the case: They DID break the law. They did not think they were breaking the law (having received home office guidance saying it was OK), but that doesn't change the fact that they broke it.

DISCLAIMER: IANAL, so I may be wrong, but I believe what I have said is correct.

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and we all know

how accurate home office advice is....

oh wait, no we don't because the FOI requests keep getting refused.

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Alert

Cheap as chips

"following an investigation lasting more than two years ... it anticipates it will have spent £5,250 investigating the case"

That seems a surprisingly low cost if correct .

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Anonymous Coward

IT doesn't seem to be beyond the realms of possibility

That those holding the purse-strings may have made the cash less than available for the funding of this investigation, given the potential incrimination of some 'big names', and the ties between BT and government. Maybe it is the case that only £5,250 was available, so this is the reason it has taken two years to investigate?

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@Jason Bloomberg - Cheap as chips

"That seems a surprisingly low cost if correct."

No - its a surprisingly high cost to come to the conclusion: "There is no case to answer".

The real cost was spent on deciding how to spin it to the public.

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Indeeeeed.......

"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"

"Prosecutors have disclosed they plan to announce their decision at the end of November, following an investigation lasting more than two years"

Either the CPS are breaking minumun wage rules, or they have been largely picking their arses for the last 2 years.

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Vic
Silver badge

"No criminal intent", my arse.

RIPA makes interception a crime., except in very specific circumstances (which circumstances were not met by the BT/Phorm trials)

BT intended to intercept traffic - the trial was planned and executed.

Ergo they had criminal intent.

Claiming they had none because they weren't going to use the data intercepted for anything nefarious is like claiming it's OK to keep the proceeds of a burglary because the money wasn't going to be used for buying guns.

DS Barry Murray made an enormous cock-up of his "investigation", and really ought to come in for some stick. His failure to understand what the crime actually *is* has cost us all both in cash and in privacy.

Vic.

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Flame

has cost us all both in cash and in privacy.

and an EU investigation...at our expense.

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Headmaster

titular thingy

Just to add a little scope, it is an EU investigation at the expense of every country in the EU.

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re: EU Investigation

That is true but if the Commission win their case in the European Court of Justice, the fines could amount to millions a week until such time as our laws are changed. These fines will be payable by UK Taxpayers.

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Megaphone

Toot toot......!

HMS Whitewash coming thru !!

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the fat lady hasn't sung yet

I think I'll bide my time on this one. But I know what JUSTICE requires - a prosecution, a conviction and some jail sentences - for the people responsible for one of the largest alleged illegal interceptions in UK history, including some CEOs and CTOs particularly. And then we can have the enquiry as to why it took two years, and deal with some of the officials and politicians involved in the cover up.

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Silver badge

fat lady gets muffled?

And while al this is going on our very own HM.Gov is talking about doingn the very same thing, only this time under the extremely poor excuse of 'security'.

Will we end up with HM.Spy monitoring our every keypress while at the same time still prosecuting others for doing something similar. Oh, forgot, we don't have any say, anyway. At least with Phorm we could complain, now we get to pay taxes to get shafted instead.

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Grenade

Not to mention...

Throwing the book at the police so incompetent they don't know a crime when they see one!

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Anonymous Coward

@the fat lady hasn't sung yet...

"And then we can have the enquiry as to why it took two years, and deal with some of the officials and politicians involved in the cover up."

That shouldn't take long - BAE should be able to help provide the answer: "Its just the price of doing business today...they've done nothing wrong etc etc"

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Black Helicopters

... and if/when they're convicted...

... no fines please. Jail them and recover the cash from them under Proceeds of Crime Act.

I don't see why I should pay to be spied on more than I already do.

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Joke

* BURN THEM ! ! ! *

That is all.

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Anonymous Coward

If this was a betting site...

I'd be placing £10 that there will be no successful prosecution. What odds would I get.

Note, I've never bet in my life, but BT are so influential that I reckon my money is safe.

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FAIL

Full of Fail

Someone in the home office must have been aware of the EU directives on this, and knew that the UK gov hadn't implemented them. So the government advised BT and Phorm that they had no intention of implementing a law that would see them prosecuted.

My prediction is that the case will be dropped. My take on "if a prosecution would be in the public interest" is whether it is worth the publics money to fight BTs expensive lawyers.

This whole affair is a big pile of FAIL.

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FAIL

"said no offence had been committed because the firms did not have criminal intent"

It'd be interesting if that logic was applied to individuals.

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Anonymous Coward

Spent £5,250 investigating the case

"The CPS said 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."

So: About two man-weeks work

Over more than two years.

Such commitment

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WTF?

I'm even more confused than normal now

I understand the requirement for BT and Phorm to be dragged over the coals for this, it's a massive and planned interception of private data. I agree wholeheartedly that they should be punished, and punished heavily.

But doesn't the new / proposed "interception modernisation programme" require BT (among others) to intercept, and keep, far more data, from far more transmission protocols, from all (not a subset) of their users, regardless of whether they are currently suspected of anything?

How is that not far more in breach of RIPA than the Phorm stuff? The ICO told them it was fine for Phorm yet it turns out it is still criminal. So if the government tell them it's fine to follow the IMP does that make it legal, or illegal, for them to intercept, collect and keep the private data from their users "in case the police need it to prevent terrorism and kiddie porn"?

Any clarification from someone that knows what they are talking about would be awesome at this point, because I'm sure I'm missing something that will make it make sense.

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Ummm

Because there is an exception in RIPA into which IMP falls ?

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Unhappy

I'm not an expert, but I reckon something

I think the previous administration were keen for BT/Phorm to carry out their trials as the results would be relevant to the IMP. Hence their reluctance to release the Home Office advice that was given to BT and the failure of the police to properly investigate.

As our new government has suddenly seen the light regarding the need for IMP, I don't expect the CPS to bring this to court. Having taken so long to make a decision, possibly hoping that in the meantime everyone had forgotten about it, they may even say too much time has elapsed since the offence was committed for a prosecution to be feasible.

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Boffin

Not quite

Data retentention regs require a limited amount of 'traffic data' to be retained, and held securely, for police/security services use only.

What BT/Phorm did involved covertly capturing the content of communications, modifying it on the fly, and using it for commercial advertising, without the consent of either party.

That's illegal interception, as well as copyright infringement, intellectual property theft, computer misuse, and fraud.

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WTF?

Go to The ECJ

Sadly our Governement is so incompetent you'd have to ask Europe for the correct legislation, it's only them who've held off the relentless march to the police state in recent years.

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Unhappy

CPS Guidlines

"First, prosecutors judge whether the evidence against the defendant offers a realistic chance of conviction"

On the face of it, this sounds reasonable. There's no point wasting money on a doomed prosecution and it also hinders Plod from using the courts to harass people they don't like. But if the CPS turn a case down, can an individual or organisation bring about a private prosecution?

"Second, they decide if a prosecution would be in the public interest."

What kind of assessment is this? If it isn't in the public interest to prosecute, why is the activity in question deemed illegal?

In combination, these guidelines allow too much room for the state to prevent an inconvenient case such as BT/Phorm from ever reaching court.

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Because Justice normally needs some discression

<Quote>

"Second, they decide if a prosecution would be in the public interest."

What kind of assessment is this? If it isn't in the public interest to prosecute, why is the activity in question deemed illegal?

</Quote>

Although in this case it is in the public interest to prosecute, those are general guidelines and there are sometimes quite a few examples where it isn't. Some examples:

A 3 year old kid might putting a marble from a shop in his pocket - he is technically stealing, but it wouldn't be in the public's interest to send him to court for it. Instead its more in their interest to make the parents look after him better.

Someone might have to break a window (so causing criminal damage) to get into a burning building to save someone's life.

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Silver badge

no criminal intent

I always thought that it was an accepted principal that "ignorance was no defence"

If they get away with the no criminal intent defence here then where do all those 35MPH in a 30 zones tickets stand. I wasn't intending to speed I was just watch in the road in preference to watching the speedo.

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Silver badge

Could be a strict liability crime

Most crimes require the perpetrator to have the intent* to perform the crime and to perform the criminal act, both at the same time. But a small number of crimes are 'strict liability', which allow conviction just by showing that the person did the thing. For public policy reasons, road traffic offences tend to be the latter.

Road stuff tends to be treated differently across the law. For tort purposes, a learner driver owes exactly the same duty of care towards other road users as a fully qualified driver, for example.

* with stuff like recklessness and negligence being permissible as 'intent' in many cases.

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Boffin

@ThomH

You might also include the slew of NuLabor cartoon and other p()rn laws.

Because as we all know "Something could lead to something else and that could lead on to something more serious"*

*Or what sounded to me like some similar drivel. What I most remember about that particular labor back bencher (for non UK readers that is a member of the House of Commons who is not a Minister or their Shadow, and not some sort of derogatory sexual reference) his remarkable resemblance to VI Lenin (including it would appear his zealotry zeal).

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FAIL

Speed judgement

If you don't know the difference between 30mph and 35mph without looking at the speedo, you shouldn't be driving.......

Of course, my speedo (in common with all of them) says 34mph when I'm actually doing 30mph

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Go

Private prosecution

With the distributed nature of the Internet, crowdsourcing, (insert further buzzwords here), it should be feasible to muster the resources needed to bring about a private prosecution, if such a thing is possible.

BT might laugh this off, but remember what happened after Andrew Crossley of ACS:Law laughed off teh Internets...

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re: Private Prosecution

This has already followed that path. The original criminal complaint I made to the City of London Police was, as you know, concluded with an assessment of "No criminal intent". As a result I wrote to the Director of Public Prosecutions asking for permission to bring a private prosecution. The DPP agreed to this but RIPA is different to most other laws, all breaches are required to be prosecuted by the CPS - so even though consent for a private prosecution was granted it still went to the CPS.

This had a number of benefits:

1. I was not liable for the costs of the prosecution should the CPS decide to go forward with a prosecution.

2. It effectively allowed me to bypass the police completely and go straight to the CPS.

There were also some consequences too of course:

1. CPS commenced with an investigation instead of going directly to prosecution in order to determine if a conviction would be likely and whether or not it would be in the public interest.

2. CPS passed the case to DS Barry Murray to investigate - this is exactly the same DS Barry Murray who investigated the original criminal complaint - the same DS who claimed RIPA was only relevant to public authorities (despite the legislation explicitly stating otherwise) and admitted to being a technophobe - the same DS who concluded in the original investigation that there had been no criminal intent.

It has been very frustrating too - the CPS have taken an incredibly long time to carry out their "investigation" - 744 days at the time of writing this comment. In that 744 days they have only spent 74 hours working on this case. When you put that into context, the average time it takes the CPS to reach a decision on whether or not to prosecute is 9 days - it would seem that the CPS haven't taken the case very seriously.

That said, I am still not sure what their decision will be. A big part of me believes that they will decide not to prosecute - citing not in the public interest as their reason. If this happens I will be forced to apply for a judicial review, which is expensive.

Then there is the optimist in me that thinks they will decide to prosecute and with the ongoing action by the EU Commission against the UK on this issue in the EU Court of Justice - this could be a real possibility.

Andrew Hadik (from the CPS) has told me they hope to reach a decision by the end of November with the caveat that that is not a definite date - so we might know in the next couple of weeks.

Needless to say, if the CPS don't push forward with a prosecution there will be outrage and I will start the fund raiser for the Judicial Review and of course file yet another complaint with the European Commission.

So I guess we just have to wait and see.

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Coat

Not our fault

It was a rogue programmer. We didn't know what he was doing, and it just grabbed all these emails and other network traffic as they went flew past.

We're going to delete all the data, but we have to keep it in case someone wants to look at it.

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WTF?

£5,250 vs £Billions .... FIGHT!!

I can't imagine who will win that one. :(

@"CPS said (.doc) it anticipates it will have spent £5,250 investigating the case by the time it comes to a decision next month"

£5,250 so really, WTF!? ... Well I have to say, I'm so happy to see they are really working very hard with teams of people working so much overtime, trying to find every last bit of evidence against them. They have had two years and its so far cost how much?! ... BASTARDS! ... £5,250 will just about pay for a barrister to get a coffee and take at least minutes looking at a few pages of paper!

Meanwhile Phorm people have been working with the government as advisers. They also even had an ex-MP on as a director and the Home Office is spending billions OF OUR MONEY to implement spying that is exactly like Phorm. So Phorm have friends in very high places.

So on the one side we have billions of our money and on the other, £5,250 to hold it all back. Wonderful.

Plus I wonder what fall guy they have lined up to take the blame, should the CPS be forced into putting up a scapegoat to take the blame. Whatever happens the outcome is going to be meaningless.

Hey CPS, what's in the "public interest" is to utterly destroy Phorm and make it illegal to ever have spying like phorm ever again. But CPS, you won't do that will you, as the Government wants to create their Police State, so a legal precedent against Phorm would hold back the government plans.

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Anonymous Coward

"Ian Livingston, in particular, must be prosecuted."

Don't forget also BT Retail's Chief Technology Officer at the time of the denied trials, who presumably purely by coincidence, later went on to be Phorm's Chief Technology Officer.

Obviously the gentleman in question is Stratis Scleparis, who seems to have surfaced again in the last couple of weeks after taking a well-earned year off after leaving Phorm.

http://www.theregister.co.uk/2009/09/18/scleparis_phorm_quits/

http://m2m.tmcnet.com/news/2010/10/13/5064500.htm

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Stop

"the CPS' decision whether to charge will be based on..."

... 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.

Someone forgot to mention Third: Whether the Old Boy Back-Scratching Network has been at work and with a nudge and a wink and a funny handshake and the offer of a few Directorships here and there and some lucrative contracts and "consultancy fees" tossed in as well sufficient pressure will be applied such that the decision will come back "Sorry, we haven't got enough evidence to convict anyone..."

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Anonymous Coward

Fingers crossed

...but I won't be holding my breath waiting for the CPS to belatedly do the right thing. In our blighted land of unregulated capitalism, there's more chance of finding a family of woolly mammoths sleeping rough under Waterloo bridge than there is a Captain (or even sergeant) of Industry face the full wrath of the legal system.

Maybe the city has had a tip-off: in the last week, phorm shares have climbed from 1.4% of their peak value to 2.2%, meaning that if you bought in at the original offering, you're still holding on to about 70% of what you started with. If you bought at the peak, I really, really am pleased; you deserve every crap life takes on you.

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No criminal Intent!?

Me lurd,

I had no criminal intent when I drove too fast because my car can do faster than the speed limit.

"Your nicked"

Just becuase something can be done big business thinks if it's in their intrests it should be done. The criminal intent is that it was done end of.

We had no criminal intent with Phorm

"Hoo that's ok then"

One rule for them one rule for the rest of us.

The the difference between the We and I. If your a We you can get away with anything if your an I tough shit.

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FAIL

We can't expect justice from the CPS

I fully expect the CPS to say that it's not in the public interest to prosecute because BT were told by the Government that what they were doing was legal.

This is the "independent" CPS who just decided to drop 200 fines and 130 court summonses lodged against minicab firm Addison Lee for deliberately using the M4 bus lane, after the boss, John Griffin, told his drivers to ignore the law and drive in the bus lane.

John Griffin has donated £150,000 to the Tories since 2008 and £4000 worth of taxi fares in the run-up to the general election. (Thanks to Private Eye for the information).

The CPS also seem to have a habit of deciding it's in the public interest to prosecute someone who defended themselves against an armed intruder, but not to prosecute police who kill unarmed civilians, in effect, quite unlawfully and with no powers or right to do so, re-writing legislation to give immunity to police officers.

People need to wake up and realise that the CPS is regularly ignoring the law, often for political reasons, persistently denying justice to the public and needs to be scrapped or at least radically overhauled.

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