back to article Cops back in on BT/Phorm case

The Crown Prosecution Service (CPS) has called in City of London Police to assist as it decides whether to go to court over BT's covert trials of Phorm's web interception and profiling system. The City force ran the original criminal investigation into the trials, which saw tens of thousands of BT customers' broadband traffic …


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  1. Scary

    Go on

    Do something useful, instead of just harassing photographers all day.

    1. dogged

      Another tack

      Perhaps we could persuade City Police that BT and Phorm were, in effect, photographing their user's data?

  2. Anonymous Coward
    Thumb Up

    New broom

    What are the odds that a change in Administration has restarted this. If so, it's a good start.

  3. Gianni Straniero
    Big Brother

    "They perceived no criminal intent by the two firms"

    actus non facit reum nisi mens sit rea, whether we like it or not.

    1. Anonymous Coward
      Anonymous Coward


      it's on twitter

      1. Dr. Mouse


        Good point well made

    2. Someone Else Silver badge

      Doo-wah-diddy and ooh-coo-ka-choo to you too, buddy

      Skreek Engrish, troop!

    3. barryred


      I always thought ignorance was not a valid defense!

      Basically that's saying that if you don't know it's against the law, it isn't, even if it is?

  4. Anonymous Coward



  5. Jason Bloomberg Silver badge
    Thumb Up

    This change of heart ...

    ... wouldn't have something to do with a change of government would it?

    Phorm seemed quite compatible with New Labour principles of control freakery and desires to know and track what citizens were doing.

    Not that government policies, philosophies, desires to protect themselves or to put the boot into others ever plays a role in decisions to investigate or prosecute. Honest.

  6. SynnerCal

    Not on my watch

    "The Crown Prosecution Service (CPS) has called in City of London Police to assist as it decides whether to go to court over BT's covert trials of Phorm's web interception and profiling system."

    Dear CPS - here's a hint - "YES, YOU STUPID BOZO'S!"

    "In a statement they argued that no criminal offence had been committed because they perceived no criminal intent by the two firms."

    Sorry, I don't understand this. Are they saying that because BT/Phorm conveniently "forgot" ;) that what they were doing was wiretapping, and therefore ILLEGAL under RIPA, that they get a "free pass"?

    If so, can I go tanking down the M1 at 100mph+ then get off scot-free because there's no signs saying it's a 70 limit, and I've - equally conveniently - "forgot" that the UK doesn't have unrestricted motorways? I also have no criminal intent - I just want to get to my destination quicker - so I should be equally immune to prosecution.

    No? Thought not ...

    It'd be nice to think that losing the DarkLord M would mean that BT and Phorm would finally get their come-uppance, but given the Tories very close links with BT in the past I hold out no hope of justice finally being delivered. So it still falls on Ms Reading to deliver what our elected officials can't - or won't!

    1. Anonymous Coward
      Anonymous Coward

      Bad Analogy

      It's not about forgetting, so "forgetting" the speed limit isn't a good analogy.

      A better analogy might be corporate manslaughter. Imagine that a company had, through negligence rather then intent, breached health and safety rules and as a result somebody had died. A charge of corporate manslaughter may be brought, in this case it does not matter whether their was criminal intent or not, negligence is enough. Intent may change the offence, we're not on the same scale here but in order to prove murder the prosecution must prove intent - without intent it would likely become manslaughter.

      Likewise with this apparent breach of RIPA. The way I understood the law BT and Phorm do not have to set out with the specific intent of breaking the law in order to break it and be guilty of an offence. It gets back to that old chestnut; Ignorance of the law is no excuse.

      They have one mitigating circumstance in their favour. They claim that some government official advised them that what they intended to do was legal. If this is the case it may work in their favour but it does not absolve them completely of blame. Could it be that this new investigation, coupled with the statement about intent points to the fact that they are now going after whoever it was in Whitehall who gave the advice, rather than BT or Phorm?

      1. VM should comply with DPA

        Ignorance of the law is not a defence

        I believe the applicable defences are that BT (a) reasonably believed that by conducting DPI, they would not be intercepting users' data or (alternatively) (b) reasonably believed they had the consent of their customers and the customers' electronic correspondents to the interceptions.

        As I understand it, you are saying that BT can rely on mistaken advice (from civil servants) that there was an argument that by using the internet, people had consented to DPI interceptions of their correspondence by ISPs. I think this would be a mistake of law, not of fact, and would not alter an ISP's liability.

        Mitigation might have an effect on sentencing, but is irrelevant to the question of guilt: ignorance of the law is not a defence.

    2. Anonymous Coward

      Possessive apostrophes



      Sorry - I feel like being a grammar pedant today.

    3. Anonymous Coward

      but given the Tories very close links with BT in the past.

      And there was me thinking it was Wacky who was on the board...

      And that is in no way at all, a confilict of interest!

  7. Anonymous Coward

    Beyond a Joke

    By putting it back into the hands of the police, they can blame them when they eventually drop the investigation. Lets be clear here, there is no will at the CPS to take this further or we would have seen action a year ago.

    This idea that there's no criminal intent is an interesting cop-out. BT must have known that they were going to break RIPA law as I'm sure their lawyers told them. They went ahead with the trials knowing this. Therefore they intentionally committed a criminal act for financial gain.

    The whole situation stinks of gentlemens handshakes in back rooms.

    1. VM should comply with DPA

      Meaning of "intention"

      "Intention" in this context does not mean an "intention to commit a crime". It means an intention to commit the acts whoch give rise to the facts that constitute the crimonal offence.

      For example, a murderer must have an intention to kill. They don't need to have an intention to break the law.

      As posted above, BT may or may not have been mis-advised on the effect of RIPA. but ignorance of the law is not a defence.

  8. irish donkey
    Thumb Up

    Opps new Government

    new bribes required!

    1. Anonymous Coward
      Anonymous Coward

      And/or... funny handshakes...

      Funny how you never see "The Bill" on TV with their trouser legs rolled up...

  9. Mike Bird 1

    Ignorance is Bliss -- but lack of intent is priceless

    So we have the statement

    "A file of evidence was handed to City of London Police, but detectives halted their investigation in September 2008. In a statement they argued that no criminal offence had been committed because they perceived no criminal intent by the two firms."

    Since when did INTENT matter in a criminal case?

    IF you do the crime then you PAY the price.

    1. JimmyPage

      INTENT is what makes it a criminal offence


      Look up "mens rea" and "actus rea".

      However, nuLab created tons of offences where "mens rea" was irrelevant. Look at the extreme porn law, for an example.

  10. Anonymous Coward

    Law in the age of the internet

    Big corporations break the law and reap the benefits. Courts take 5 years to look at the case and come up with a solution that is now totally irrelevant.


    - MS Internet Explorer

    - MS anticompetitive practises (i.e. almost everything they do)

    - Google "privacy-bending" activities (i.e. everything they do)

    - Apple distribution monopoly

    - Sony advertising feature X just to remove it later

    - Sony rootkit

    - etc

    But the pirates are those who share 15 mp3s of some crap produced by the "music" majors.

  11. Gordon is not a Moron

    Now a cynic would think that

    the CPS' change of heart has something to do with there being a new government since last time they looked at this, that and the proposed "Freedom Bill".

    Just as well I'm not a cynic.

  12. Mark Eaton-Park

    about time too

    One wonders if there was intent in the previous goverment failure to investigate as per their duty. I hope the people who okayed phorm are put away, ignorance of the law is no protection an all that, especially as they only thought to check after allowing PHORM to spy on us.

    Burn BT execs not flame

  13. Matthew Collier

    @Gianni Straniero

    "actus non facit reum nisi mens sit rea, whether we like it or not."

    Surely, what that means is, if they meant to carry out what they carried out, and that is illegal, then there is a case to answer? The intent itself doesn't have to be "criminal", just that it was there? (i.e. they meant to do it, it wasn't accidental?) On that basis, it is still illegal and they should be prosecuted as such?

    Obviously, IANAL, hence several question marks! ;)

    1. VM should comply with DPA

      Issue of consent

      Exactly. I think BT's argument is that they had constructive (albeit not actual) consent of the people whose communications they intercepted. The European Commission's case against the UK is that the law should have been implemented in such a way that users must give their free and informed consent (if ISPs were to rely on consent as a defence to a plea of unlawful interception).

  14. Mos Eisley Spaceport

    I perceive a lack of intent by the old firm

    This will not fly.

    Heads will not roll.

    No one will be punished.

    Sad, but true.

  15. Anonymous Coward
    Anonymous Coward

    Just BT and Phorm

    Why just BT and Phorm? Haven't other ISPs have performed similar trials with Phorm? But more importantly didn't BT claim that they had contacted prior to the trials and had been given the go ahead? In which case doesn't that implicate at least one civil servant? It could go even deeper than that, there is of course a possibility that some minister or junior minister was aware of the trials. Not that there will be a paper trail.

    Has this sudden change of heart on the part of the CPS got something to do with the fact that they have new political masters? Could this fit in with the witch hunt int Nulabour spending that the ConLibs have initiated? The whole approach seems to be based on demonstrating to the electorate exactly how dodgy the last government was. Could be they're aiming to make sure that even fewer people will vote labour should the coalition collapse after a few months.

    Can we expect to see further enquiries anounced into other government activities. After all the previous administration did their best to keep everything under wraps, even if they did hold enquiries they tried their best to make sure they were behinc closed doors.

    It's a shame the enquiry into the Iraq war went ahead. The original plan was to hold it after the election, then suddenly there was a U-turn and it was going to be held before the election but in private, finally they gave in and held most of it in the public eye but made damn sure it would have no power to apportion blame or do anything useful. Had it been held under the ConLibs I suspect it would have had more teeth.

    1. Chris Williams (Written by Reg staff)

      Re: Just BT and Phorm

      "Why just BT and Phorm? Haven't other ISPs have performed similar trials with Phorm?"


      1. MyHeadIsSpinning

        @ Chris Williams

        Virgin have shown an interest;


      They didn't

      "didn't BT claim that they had contacted prior to the trials and had been given the go ahead?"

      Even if they had consulted the government, that does not make interception legal without informed consent from both parties, or a warrant in connection with suspicion of a criminal offence.

      BT conducted three covert trials in 2006, 2007, and 2008... monitoring the private/confidential communications of 200,000 people and the organisations that served them.

      The Home Office, and Information Commissioners Office, deny that they authorised the trials, though there is clear evidence of collusion between the Home Office and Phorm.

      The Cabinet Office refuse to reveal when the Prime Minister was first informed, or whether Brown/Blair authorised the trials.

  16. Tech Hippy

    Mens Rea

    Intent to perform the act is required, not specific intent to break the law, surely?

    The intent was to track users covertly, and that act was carried out.

    Ignorance of the law is no excuse... Ignorantia legis neminem excusat

  17. alabony

    There's a case to answer anyway

    'No criminal intent'? That's only one part of the test. If I pass a speed camera doing 75mph in a 60 zone, I'll still be found guilty of the offence, even if I didn't mean to speed. What about recklessness or criminal negligence?

    Besides, the simple principle of individuals having control over their own personal information is being eroded quite quickly enough without these Machiavellian clowns having a go too! I hope the civil case is successful - start to put a few warning shots over the bows of companies seeking to profit by making our lives harder to manage.

  18. The Metal Cod
    Big Brother

    Attempting Yet More Copping Out

    Methinks this does have something to do with the change of administration. City of London Police have already shown their inability to understand RIPA and enforce the law correctly. The CPS have taken nearly 600 days so far in deciding what, if any, action to take. The Cabinet Office refused to answer questions about Phorm & BT's involvement with the former "government".

    The only acceptable solution to this is to see the executives responsible for these mass breaches of RIPA (that's from BT and Phorm) up in court on charges. Those responsible for policing, governmental and advisory failure should be named, shamed and barred from working in their respective fields.

  19. Anonymous Coward
    Thumb Up

    They knew what they were doing.

    "didn't BT claim that they had contacted prior to the trials and had been given the go ahead?"

    I'm not aware of any evidence of that, nor of any claim by Phorm - especially if we are talking about the covert trials. they knew what they were doing. They "claimed" to have taken legal advice/er/sought/er/opinion (remember Emma?) and they are fully culpable. No escape.

  20. Steve the Cynic

    Mens Rea == Guilty Mind

    Intent is very much a part of criminal law. For example, the essential difference between murder (killing a person) and manslaughter (killing a person without meaning to) is that in the second the killer didn't mean to kill, while in the first he did.

    "Conspiracy to [something]" is, of course, the ultimate "intent" crime. In a conspiracy case, the accused is not accused of actually doing [something], but merely of having (and discussing) the intent of doing it.

    For some offences, of course, the question of intent is specifically excluded: English criminal law has the idea of "strict liability" offences, i.e. ones for which the mere fact of having done the deed is sufficient, and no account will be taken of a lack of criminal intent when determining guilt or innocence.

    1. Anonymous Coward
      Anonymous Coward

      All true, but irrelevant in this case

      A good example of how intent applies is Google's recent admission that their street view cars were capturing communications data. However, they had no intent to capture this data. They wanted MAC addresses and SSIDs but the packets they captured happened to contain other data which they didn't discard.

      In BT's case, however, they were deliberately eavesdropping on communications data. This wasn't some accidental side-effect of the software, but the whole point of it. So they had the necessary intent.

      It may turn out that what they were doing is not illegal for some other reason (presumably whoever gave them the original legal advice thinks so) but their intent is clear.

    2. Eponymous Cowherd

      Reasonable Persons

      The real test is (or should be) whether a "reasonable person" in the positions of the people implementing the Phorm system should know that such a system does constitute an illegal wiretap.

      I would say that such people *should* be aware of the law regarding the interception of private communications. It is their business to know and it is reasonable to expect them to know.

      Whether or not they actually had "guilty minds", they should have been aware that what they were doing was potentially illegal. The fact that they claim didn't know should not be allowed as a defence.

  21. Dodgy Geezer Silver badge

    At the bar of Vulture opinion...

    "...Intent to perform the act is required, not specific intent to break the law, surely?.."

    I believe m'learned friend, Mr Justice Tech Hippie, has, with admirable legal acumen, precisely described the point at which our oponents' case fails...

    Rem acu tetigisti...

    Big Brother

    The Story of Phorm

    The final chapter of this scam still has to be written. But the plot is already well known.

    It involves commercial corruption, illegal surveillance, industrial espionage, fraud, computer misuse, copyright theft, human rights violation, policitical favours, and gross incompetence (or serious corruption) on the part of the UK Security Services, Information Commissioner, Ofcom, and the Police.

    The idea that there was 'no intent' is about as credible as Ken Dodd leading the country to a 10-0 victory in the World Cup against Brazil.

    Speaking of Brazil, Dartley Holdings are in the news in Brazil. And its not because Ken Dodd has a beneficial interest.

    When the last i is dotted, and t is crossed, expect to be shocked.

  23. Roger Jenkins

    Legal opinion

    It occurs to me that the very fact that Phorm/BT sought legal advice regarding their position surely must mean that they were well aware that they were treading a fine line between legality and illegality. Sure, most companies will pass stuff to the company lawyers to make sure that they havn't inadvertently breached. But, to get external legal opinion logically points to internal doubts about the their position. This in itself doesn't point to intent to breach the law, but it does mean that they had knowledge that they are at least sailing very close to the wind. In this case they apparently sailed too close and breached.

    1. Anonymous Coward
      Anonymous Coward

      I agree with the learned Gentleman...

      Do we know who it was in Government circles who issued the advice, or which group of Government lawyers? Was it a single person in charge of a department or an 'Advisor'?

      I only ask because Sir Humprey's defense will be the following gold nugget. "I was in charge of the legal department, of COURSE I wasn't a lawyer!"

      Can't get those jobs on the board for now't y'know.

  24. David 45

    Crminal intent (or internet) ?

    "They perceived no criminal intent by the two firms". I find this difficult to handle. In future, will I be able to do umpteen miles an hour over the speed limit, go and rob my neighbour's house, mug a few old ladies, throwing in a couple of murders on the way, thereby committing a crime or two (no question about it), but I can get off if I say I had no criminal intent? Is this the way the law works these days? Looks like there have been consultations with the same dubious members of the force who have recently been harassing (and in one UK case - actually ARRESTING) amateur photographers and have apparently been making up new "laws" to suit themselves they go along.

  25. Dennis Wilson

    Another Inquest

    The very public government cover up of this criminal act is getting more and more interesting. With the tooting police shooting, and the Paris crash, the government have shown that they are more than willing to break any law, and short circuit any regulators ruling to get the result they want. With ministerial fingerprints over this it is obvious that the predetermined conviction and punishment will not fit the crime, not unless a rich Arab is involved.

  26. Stratman


    "In a statement they argued that no criminal offence had been committed because they perceived no criminal intent by the two firms."

    So, because they only wanted to look at the data and not alter it they commited no offence.

    Like Gary McKinnon then.

    Big Brother

    BT didn't Intend to *Get Caught*

    BT didn't intend to *get caught*. They *did intend* to covertly intercept the communications of their customers.

    The report into the 2006 escapade used the term 'stealth trials', with the intention that it should be 'entirely transparent' to users.

    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*. They clearly *did intend* to conduct illegal covert surveillance.

  28. Anonymous Coward


    "The Crown Prosecution Service (CPS) has called in City of London Police to assist as it decides whether to go to court over BT's covert trials of Phorm's web interception and profiling system."

    Did the CPS run out of doughnuts or something?

  29. Tom Thomson

    Mens rea

    Quoting "actus non facit reum nisi mens sit rea" might be useful if the person quoting it had a clue what it meant.

    What it means is that (in most cases) someone is not liable for something that (a) they did not intend to do and (b) they did not cause to happen through recklessly disregarding the consequences of their actions that they did intend to so. Obviously Giammi Straniero didn't understand that any more than the City police admitted to understanding it, else he would not have added "whether we like it or not".

    If BT didn't intend that data in transit over the public communications service they provide should be looked at, and assumed (without being reckless about it) that even if they gave it to Phorm to look at Phorm wouldn't actually look at it, then the old tag applies. Otherwise (as is clearly the case) it doesn't, and the police's statement that it did apply was either total incompetence on the part of the police or a deliberate attempt to sweep a crime under the carpet.

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