Police drop BT-Phorm probe

[Nicholas Bohm]

Peter Fairbrother wrote:
> El Reg
> http://www.theregister.co.uk/2008/09/22/bt_phorm_police_drop/
> 
> "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."
> 
> Would interception be an offence of strict liability? Shouldn't it be?

No, I think it needs the ordinary mens rea of intending to do the acts 
that constitute the relevant parts of the offence.  Very few offences 
(if any) require an intent that a crime be committed, and this certainly 
isn't one of them.  So this "no intent" point reveals the very dimmest 
possible failure to engage brain before operating wordprocessor.

> If so, is a lack of criminal intent irrelevant? And once it has been 
> pointed out that an act is an offence - as is implicit in basing the 
> decision not to proceed on a lack of criminal intent - can they go ahead 
> and do it again?
> 
> 
> "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."
> 
> 
> That sounds very thin indeed - and ignores the requirement for consent 
> from the web page owners.

"Implied consent" requires some circumstance which implies something 
about the customer's state of mind, and clearly cannot be present where 
the customer knew nothing about what BT was doing and cannot therefore 
(e.g. by not objecting) be supposed to have consented or given even a 
hint of any attitude at all.  This is a very bad point, even if you 
ignore the dual consent requirement.

This police response is just cretinous.  I would have a lot more time 
for them if they said, "Yes, well, there do seem to have been offences, 
at least arguably; but there's some tricky law in there (namely RIPA 
s3(3)) which would mean expensive lawyers and might mean appeals, and 
almost no real harm was done (though we can see a few people were messed 
about a bit); and BT almost certainly won't do the same thing again if 
they deploy with customer consent.  So it's not really right for us to 
spend public money on it, it's a matter for regulators rather than the 
police, or for private parties to spend their own money on."  I wouldn't 
agree with this, but it would at least be honest and to the point.

Nick
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