The Crown Prosecution Service (CPS) has refused consent to prosecute British Telecom (BT) and Phorm, Inc. over “secret” trials of Phorm’s behavioural targeting technology on BT’s ISP customers.
In 2006, BT and Phorm conducted trials of Phorm’s behavioural targeting technology on about 18,000 BT customers without their knowledge. Through the use of deep packet inspection techniques, Phorm collected information on Internet users’ browsing habits and used this to serve targeted adverts. Following the decision by the City of London Police to investigate BT and Phorm, a private individual sought CPS consent to commence prosecution for unlawful interception of Internet traffic in breach of the UK’s Regulation of Investigatory Powers Act 2000 (RIPA).
The CPS has now refused consent on the basis that there is no “realistic prospect of conviction” and that prosecution would not be in the public interest. It noted that, despite initial advice from the Home Office indicating that trials of the behavioural targeting technology would be lawful, BT and Phorm subsequently received conflicting advice leading them to suspend trials. The CPS concluded that neither company had acted in bad faith and that no individuals have suffered damage or harm as a result.
Home Office proposes RIPA amendments
On the same day that the CPS refused consent to prosecute Phorm and BT, the Home Office published the results of its consultation into remedial amendments to RIPA. The Home Office instigated the consultation following the European Commission’s decision in 2009 to commence legal proceedings against the UK Government for failure to implement properly the Data Protection and e-Privacy Directives.
The commission had asserted that the existing offence of unlawful communications interception in RIPA only addressed “intentional” interception, while the e-Privacy Directive, by contrast, prohibits any unlawful interception. The commission further maintained that interception of a communication based on a “reasonable belief” that the parties to it had consented to the interception, permitted by RIPA, did not reflect the standard of “consent” set out in the Data Protection Directive.
Following the conclusion of this consultation, the Home Office published its proposed amendments to RIPA in a draft statutory instrument, the Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011 (the “Regulations”). The Regulations amend RIPA to:
- provide the Interception of Communications Commissioner (responsible for overseeing the exercise of powers under RIPA) with the power to impose fines for interception (whether intentional or not) without lawful authority; and
- remove the previous ground justifying interception without a warrant in reliance on a “reasonable belief” that both the parties had consented to the interception.
