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BT could face criminal case over Phorm trials

Prosecutors call in senior barrister

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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 customers, the CPS told campaigners this week that it is still investigating the affair.

"The Crown Prosecution Service is working hard to review the evidence in this legally and factually complex matter," a spokeswoman said.

"We have requested and received technical and expert evidence, some of which we have only recently received, and which is being very carefully considered."

The final decision on whether to prosecute will rest with Keir Starmer, the director of public prosecutions.

The CPS' investigation was triggered in October 2008, when the campaign website NoDPI.org directly contacted the CPS, after City of London Police refused to investigate.

Campaigners gave prosecutors a file of evidence, including a copy of BT's detailed internal report on a trial of Phorm's technology in 2006, obtained by The Register. The experiment monitored 18,000 broadband lines without customers' knowledge or consent.

This week the CPS said: "We are currently awaiting advice from a senior barrister which we will review before coming to a conclusion. We are giving the matter meticulous attention and will reach a proper and considered decision as soon as it is possible for us to do so."

The main law BT is alleged to have broken is the Regulation of Investigatory Powers Act (RIPA). It restricts the interception of communications.

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.

BT declined to make any comment today.

Although the CPS is politically independent, a criminal prosecution may be viewed as a useful move in Whitehall.

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. Officials in Brussels believe the episode has exposed deficiencies in UK privacy law and have demanded it is tightened. A prosecution under RIPA might help persuade the Commission or court that current legislation is adequate to protect internet users.

BT dropped plans to implement Phorm's system following the public furore over their secret trials. The advertising firm has since been forced to abandon the UK market to seek partnerships with ISPs in Asia and South America.

News that BT remains under threat of a criminal prosecution will be particularly unwelcome in the office of Ian Livingstone, the group's chief executive. As boss of BT Retail at the time, he was the senior executive directly responsible for the secret Phorm trials. ®

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