Alexander Hanff [pictured], a technologist who campaigns against Phorm's targeted advertising product, wrote on his No Deep Packet Inspection blog on Tuesday that he would be submitting evidence to the Crown Prosecution Service (CPS) about the trials. Hanff claims the interception of data packets to serve targeted ads contravened the Regulation of Investigatory Powers Act (RIPA).
"It would seem that I now need to hand all the evidence to the Crown Prosecution Service directly (effectively bypassing the City of London Police), at which point they will decide whether or not to prosecute," wrote Hanff.
The campaigner had previously handed a file to City of London police, asserting that in conducting the trials, BT had broken a number of data-protection and privacy laws, including the Data Protection Act, as customer consent had not been gained.
In September, City of London police dropped their investigation, prompting Hanff to approach the CPS directly. Prosecutors will now look at the evidence gathered by Hanff, to decide whether to seek permission from the director of public prosecutions to move forward.
To launch a prosecution, the CPS must be satisfied that there is enough evidence to provide a 'realistic prospect of conviction' against BT and Phorm, and that it would be in the public interest to prosecute.
Hanff told ZDNet.co.uk on Wednesday that he "won't stop until all options are exhausted". In an email interview, Hanff said that, if the CPS decides not to proceed with the case, then he would seek judicial review, petition the European Commission, and consider applying to bring a case before the European Court of Human Rights.
"Article 8 of the European Convention on Human Rights grants all members of Europe the right to privacy in their private lives and communications," wrote Hanff.
The privacy campaigner added that, should a case proceed, he will seek an injunction to stop BT or Phorm deploying the technology in the UK, until a judgement is made.
BT and Phorm declined to comment on Wednesday.
BT conducted further Phorm trials at the end of September 2008, after delays of over six months. It gained customer consent for the September 2008 trials.
Talkback
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when you said "BT _conducted_ further Phorm trials at the end of September 2008, after delays of over six months. It gained customer consent for the September 2008 trials."
did you mean to say BT have said they _ARE_ currently _CONDUCTING_ a trial of the data packet interception for profit ?
they (both BT and the Phorm PR teams)have indeed said they had started this latest trial, and that it would run for several weeks (6+ i beleave) so it is runnin right now if you beleave them.
however, as of today, a full 16 days later,NOT ONE single BT customer (as apposed to a known Phorm shares owner with a vested interest OC) on the betaBT messageboard, the register comments section as relates to this story, the investors sites, or any NoDPI reader has yet confirmed they have infact been intercepted for the interstitial page to be displayed and acted upon.
bottom line, there is currently NO EVIDENCE that anyone HAS GIVEN their PERMISSION to be INTERCEPTED FOR PROFITto date.
so your claim that customer consent was given is wrong at this time, infact it sounds like a direct Phorm PR bit of copy, you wouldnt be copy-pasting or taking Phorm PR submitted text to increase your news copy would you?
its strange, not one single report or sighting of anyone seeing and acting on official informed consent opt-in Phorm web page, and given the the fact Phorm were giving their latest finantial report, (and it was dire), the day before the so called trial started.
you might be forgiven for thinking the trial date was a market hoax to try and keep the stock price from falling even more, goo job the news services do their homework and didnt rely on and fall for the Phorm PR, or did you/they ? ;)
Interesting points. You're right in saying that the trials are ongoing at the moment. However, BT said that the trials are to run for "a number of weeks", rather than six plus.
I was interested in the points you raised, so I gave BT a ring. They denied that the trials have not started.
"The trial has started, invitations have gone out, and people have accepted them," a BT spokesperson told me. The spokesperson declined to say how many people had accepted the invitation, or how long the trial would run.
"I'm not at liberty to give a running commentary on the trial, and as such we've not given a specific end date," said the spokesperson.
As for your conjecture that the trial story could be a hoax, well, I think it's unlikely that BT would announce the trial and then not go through with it, quite simply because the reputational damage would be huge _when_ it was found out. That sort of thing would completely scupper its Webwise product in the eyes of the public, something BT quite patently doesn't want to happen. If BT ran the trial but didn't obtain customer consent, then the Information Commissioner's Office would take exception to the trial, with a similar bad publicity result for BT.