Police drop BT-Phorm probe

[Nicholas Bohm]

Caspar Bowden wrote:
>> admin@chiark.greenend.org.uk] On Behalf Of Nicholas Bohm
> ...
>> 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.
>>
> ...
>> This police response is just cretinous
> 
> [CB] not disagreeing but there's more juice in the EU e-Privacy angle

Yes, if the ICO is willing to take on BT.

>> -----Original Message-----
>> From: ukcrypto-admin@chiark.greenend.org.uk [mailto:ukcrypto-
>> admin@chiark.greenend.org.uk] On Behalf Of Caspar Bowden
>> Sent: 16 April 2008 06:22
> ...
> http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0058:EN:NOT
>> <<<Recital (21) ...National
>> legislation in some Member States only prohibits INTENTIONAL
>> unauthorised access to communications.
> 
> ...
>> So there's an interesting twist here: Recital 21 flags up that some
>> member states only prohibit INTENTIONAL unauthorised access (with the
>> implication that those Member States should fix their laws). And yea
>> verily, S.1(1) of RIPA says
>>
>> <<< Unlawful interception
>> 1(1) It shall be an offence for a person intentionally and without
>> lawful authority to intercept>>>
>>
>> So
>>
>> Q1. Was the end bit of Recital 21 having a dig at RIPA (amongst other
>> national laws)?

I wish I knew - too delphic for me.

>> Q2. is the ISP's defence, "we didn't realise we were intercepting,
>> honest guv"?

That's the only possible defence (apart from "It's OK under s3(3)"). 
And even then it doesn't usually wash - try "I didn't realise I was 
speeding, honest guv."  What irritates me about this Phorm business is 
the hypocrisy it brings to the surface.

>> Q3. If lots of people tell the ISP that they think they ARE being
>> intercepted, does that nullify the defence?

Certainly, if it's based on ignorance.

Nick
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