Opinion: Police opens door to spyware makers

Phorm is temporary, class is permanent
Phorm is temporary, class is permanent

The news that the police wouldn't charge BT over trialing the insidious Phorm ad-spyware certainly didn't come as a major surprise, but when I read the justification for this decision from the City of London constabulary I was livid.

"BT had not had criminal intent and that there was implied consent because the service was going to benefit customers," the BBC learned.

I'll get to the 'illegal intent' bit in a minute – but let's just start with the implied consent.


Apparently, because BT thought that the user experience would be helped by personally served ads, this means that the customers who were not asked if they wanted to participate in a trial that watched their internet behaviour without informing them, had implied their consent.

Let's break this down – first of all, is the service beneficial? This is, to all extents and purposes, a spyware program. I'll back that up a little: Wikipedia says that spyware is 'computer software that is installed surreptitiously on a personal computer to intercept or take partial control over the user's interaction with the computer, without the user's informed consent.'

Has the program be installed surreptitiously? Yes.

Has it taken partial control of the user's interaction? I'd say that serving up personalised ads very much changes that user's experience.


But, is your internet experience enriched by personally served ads? I'd be inclined to say a big fat 'no' as I'm sure many would.

The Phorm-using company's pockets are enriched and the advertisers get a more targeted audience so they are happy. You could argue that the financial gains are eventually passed down to the end user – but this is tenuous in the extreme.

So to take the police's argument to its logical conclusion. If I was to put spyware on your computer – watch what you were doing and then ring you up to say that you shouldn't be buying that thing from Amazon because my shop was cheaper then that could be deemed perfectly legal.

I'm not trying to steal your money and I'm offering a beneficial service – so that, apparently, means that you have implied your consent.

It's absolute nonsense.

And legal eagle Nicholas Bohm made sure that the 'criminal intent' part of the explanation was rubbish when he told the Beeb "A driver who kills someone when drunk has no criminal intent. It is not a necessary ingredient of a crime."

I never expected BT to be investigated – but I did expect a slightly more cohesive argument as to why they were being excused for what I see as a gross invasion of privacy.

Patrick Goss

Patrick Goss is the ex-Editor in Chief of TechRadar. Patrick was a passionate and experienced journalist, and he has been lucky enough to work on some of the finest online properties on the planet, building audiences everywhere and establishing himself at the forefront of digital content.  After a long stint as the boss at TechRadar, Patrick has now moved on to a role with Apple, where he is the Managing Editor for the App Store in the UK.