Police drop investigation into BT's Phorm trials

The justification offered by City of London Police — that there was no criminal intent in the Phorm ad-serving trials — has been branded 'cretinous' by a thinktank

City of London Police has dropped an investigation into the legality of BT trials of Phorm's ad-serving technology.

In July, technology campaigner Alexander Hanff presented a complaint to the police force against trials of the Phorm ad-serving technology by BT in 2006 and 2007. Hanff asserted that, in conducting the trials, BT had broken a number of data-protection and privacy laws, including the Regulatory of Investigatory Powers Act (RIPA) and the Data Protection Act, as customer consent had not been gained.

However, on Monday, the City of London Police wrote to Hanff to inform him that they would not be taking the investigation any further, as there was a "lack of criminal intent".

"The matter will not be investigated by the City of London Police, as it has been decided that no criminal offence has been committed," wrote detective sergeant Barry Murray. "One of the main reasons for this decision is the lack of criminal intent on behalf of BT and Phorm in relation to the tests. It is also believed that there would have been a level of implied consent from BT's customers in relation to the tests, as the aim was to enhance their products."

Murray went on to write that the police considered this a civil dispute, and so it would be "inappropriate for police to use public funds to pursue civil issues where there is no suggestion that criminal intent exists".

The police response brought censure from Foundation for Information Policy Research (FIPR) counsel Nicholas Bohm.

"This police response is just cretinous," wrote Bohm on the UKCrypto mailing list on Monday. "Very few offences (if any) require an intent that a crime be committed, and this certainly isn't one of them. So this 'no intent' point reveals the very dimmest possible failure to engage brain before operating word processor."

Bohm wrote that "implied consent" requires some circumstance related to the customer's state of mind, which "could not be present if the customer knew nothing about what BT was doing".

Alexander Hanff told ZDNet.co.uk on Tuesday that, although he had hoped the police would carry the investigation forward, his campaign had not suffered a setback.

"I was hoping the City of London Police would finally provide the means to settle this issue, but I was wrong," wrote Hanff in an email interview. "Receiving a decision from City of London Police was an important step and was really a win-win situation for the campaign, regardless of the decision."

Hanff said that there was a possibility he would file for a judicial review of the way the police had handled the case, adding that he had put in Freedom of Information Act requests for information on the investigation. Hanff added that he would also be turning over his correspondence with Murray to the European Commission, which is currently investigating the way in which the UK government, law-enforcement and regulatory authorities have handled the case.

European Commission information society spokesman Martin Selmayr told ZDNet.co.uk that Hanff's correspondence would be considered by the European Commission in its Phorm probe.

"The Commission is always looking into complaints of citizens," wrote Selmayr in an email.

Hanff added that he is also looking at the possibility of approaching the European Court of Human Rights on the grounds that "the police and UK government have failed to uphold and enforce Article 8 rights of the European Convention on Human Rights."