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Following a complaint placed in July 2008 by campaigners against the British companies BT and Phorm for their allegedly illegal secret ISP-level adware trials, the London Police decided not to investigate the case arguing there had been implied consent of their customers. BT started its third trial of Phorm technology on 30 September, this time asking the consumers to opt-in.

Phorm is used to monitor a user's web browsing history, taking a copy of the places the user goes to and search terms he (she) looks for. Then, adverts related to that history are placed on websites that have signed up to use Phorm, such as BT, Talk Talk and Virgin.

Phorm has been criticised being considered to break laws on unwarranted interception of data. Privacy advocates are also concerned by the information that the technology gathers about a user's web browsing habits.

"The matter will not be investigated by the City of London Police as it has been decided that no Criminal Offence has been committed. One of the main reasons for this decision is the lack of Criminal Intent on behalf of BT and Phorm Inc 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" wrote detective sergeant Barry Murray in an email to Alex Hanff, the anti-Phorm campaigner having compiled the dossier against the two companies.

In the police's opinion, the matter is considered a civil dispute and "there is no suggestion that Criminal Intent exists." Nicholas Bohm, lead counsel of the Foundation for Information Policy Research, considers the police's explanation "pathetic" and argues that Phorm breaks several criminal laws, especially if there is no consent. "City of London Police's response expresses massive disinterest in what occurred. Saying that BT customers gave implied consent is absurd. There was never any behaviour by BT customers that could be interpreted as implied consent because they were deliberately kept in the dark. As for the issue of whether there was criminal intent, well, they intended to intercept communications. That was the purpose of what they were doing. To say that there was no criminal intent is to misunderstand the legal requirements for criminal intent" he said.

In February, after the first two trials of the technology used to intercept and profile subscribers' Internet usage, BT and Phorm were advised by the Home Office that the technology was covered by the Regulation of Investigatory Powers Act (RIPA), governing wiretapping. The system could be legal if consent was obtained but it appears that no consent had been asked during those trials.

The Information Commissioner Office (ICO) asked in April 2008 that Phorm ad-targeting system should be "opt in" and stated it would monitor Phorm trials and commercial rollout to ensure the observation of the data protection laws. ICO said that after its discussions with Phorm, there appeared to be no infringement of the laws regarding personal data.

Information Society Commissioner Viviane Reding had asked the UK Government to give, by the end of August, an explanation of how Phorm's technology conformed with EU data protection and privacy laws. The Department for Business, Enterprise and Regulatory Reform (BERR) responded in September, basically considering that Phorm's products are capable of being operated with the users' knowledge and consent, and if the users are "presented with an unavoidable statement about the product and asked to exercise a choice about whether to be involved."

But, as Nicholas Bohm has shown, unless the ISPs have the explicit consent of both the customers whose profile is used as well as the advertising websites using it, they are likely to commit an offence under the Regulation of Investigatory Powers Act (RIPA). "The inevitable conclusion is that an ISP who operates the Phorm system will commit offences under RIPA s1 on a large scale. Phorm is inciting the commission of those offences, which is itself an offence at common law (and will be an offence under section 44 of the Serious Crime Act 2007 when it is brought into force to replace the common law offence)" said Bohm.

The question is whether UK authorities are aware that communications between Internet users and website owners during web browsing are legally private just like the communications between any two private people. They think future Phorm deployments can be legal. On the other hand, they refused to make public their answer to the European Commission about the first two secret trials.

Without having a clear answer on these issues, BT started on 30 September a new trial of the Phorm technology, this time by asking consent to its users for the participation in the trial. The company has even envisaged incentives such as offering to donate to charities if its users opt to let their Internet use profile for advertisers, an upgrade to a faster broadband package at no extra cost, a reduction in the bill, free music or anti-virus software download vouchers or others.

Digital rights campaigners have fought against Phorm for some time now and have shown that there is no protection for UK citizens from corporations wanting to illegally intercept private communications.

The European Commission lawyers are analysing the UK government's explanation of why no action has been taken.

Police drop BT-Phorm probe (22.09.2008)
http://www.theregister.co.uk/2008/09/22/bt_phorm_police_drop/

Phorm mulls incentives for ad targeting wiretaps (26.09.2008)
http://www.theregister.co.uk/2008/09/26/phorm_webwise_incentives_surve...

4 good reasons not to take part in the BT Webwise trial (30.09.2008)
http://www.openrightsgroup.org/2008/09/30/4-good-reasons-not-to-take-p...

What BERR want from Phorm - and what we think they're missing (19.09.2008)
http://www.openrightsgroup.org/2008/09/19/what-berr-want-from-phorm-an...

The Phorm "Webwise" System (18.05.2008)
http://www.cl.cam.ac.uk/~rnc1/080518-phorm.pdf

EDRi-gram: UK: Phorm targeted advertising practices - under pressure (28.03.2008)
http://www.edri.org/edrigram/number6.6/phorm-uk-ifpr