Crown Prosecution Service lets Phorm, BT free

The Crown Prosecution Service has declared that it will not be prosecuting Phorm and BT over the pair's plans to use deep-packet inspection techniques to spy on users' Internet traffic for the purposes of delivering targeted advertising.

Phorm's invasive technology was implemented by BT without its customers knowledge, in a move that many privacy advocates considered a breach of criminal law. While Phorm's partnership with BT was dissolved - and its plans to introduce the technology as a permanent 'feature' of BT and others' networks was cancelled - many sought criminal proceedings against the pair.

Alexander Hanff, from rights group Privacy International, was one such advocate of criminal action. He personally chased the issue through both the City of London Police and, when they demurred from bringing charges, the Crown Prosecution Service.

A letter received by Hanff today, however, indicates that the CPS will not be bringing a case against either company. In the document, the CPS claims: "We have considered this matter fully and in accordance with both stages of the Full Code Test under the Code for Crown Prosecutors. We have decided that this is not an appropriate case for the Director of Public Prosecutions to grant his consent to a prosecution.

"The results of these enquiries have been carefully considered and there is still insufficient evidence to commence a prosecution against BT or Phorm. It is apparent that very considerable further work of investigation would be necessary if further consideration of the evidential stage were to take place," the letter warns.

The letter goes on to point out that, even if the evidential stage is satisfied, the public interest stage is another potential stumbling block.

The CPS also advises that the penalties resulting from any conviction are likely to be minimal, making the move an expensive lesson in bad PR rather than a true punishment for either firm.

Hanff, naturally, disagrees with the CPS on all counts. Speaking to thinq_, he declared that he was "very angry" at the decision not to prosecute. "The same police officer who carried out the investigation on the original complaint I made to City of London Police, ran the CPS investigation - which I objected to as soon as I discovered that to be the case - and the decision of the CPS is basically the same as his original decision, although it is four pages longer and uses longer words.

"The CPS has acknowledged there was an offence, and they have acknowledged there is also an ECHR issue, yet they have decided not to prosecute because it is not in the public interest and there was no criminal intent - exactly the same arguments used in the original CoLP complaint," he explained.

Hanff takes special umbrage at the part of the ruling which indicates that, because Phorm and BT had sought legal advice before proceeding with the trial of their packet-sniffing ad programme, neither could be said to have 'criminal intent' - and were therefore innocent. "The CPS decision basically provides a 'Get Out of Jail Free' card for business," he explained. "If businesses obtain a legal opinion which says it is OK to break the law, the CPS will not prosecute on grounds of no criminal intent.

"My argument is that wholesale interception of the nation's communications for commercial gain is absolutely a public interest issue, and refusal to prosecute undermines confidence in our entire judicial system; it paints a very clear picture that big business is above the law."

Although Hanff is keen to pursue the matter further, mulling the possibility of seeking a judicial review into the matter and even filing a complaint against the Crown Prosecution Service itself under the Human Rights Act, he warns that the excessive period of time that has elasped since his original complaint - over nine hundred days - makes matters difficult.

"I have progressed onto other issues since then," he admitted, "and any further action requires substantial financial investment which I currently have no budget for."