Police drop BT-Phorm probe

[David Biggins]

> -----Original Message-----
> From: ukcrypto-admin@chiark.greenend.org.uk [mailto:ukcrypto-
> admin@chiark.greenend.org.uk] On Behalf Of Peter Fairbrother
> Sent: 22 September 2008 18:51
> To: ukcrypto@chiark.greenend.org.uk
> Subject: Police drop BT-Phorm probe
>=20
> Would interception be an offence of strict liability? Shouldn't it be?

I would have thought that it should be - whether it is, or not, would be
one for one of the lawyers here.

If it is not then it might be argued (and I might be confusing the
timeline here) that obtaining the (flawed) Home Office advice that the
service would be legal,   might throw enough doubt into the question of
criminal intent to make a prosecution "beyond reasonable doubt" somewhat
difficult.

> 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?

I would hope that various subsequent UK and EU pronouncements on
informed consent and requirement for explicit opt in would make a
repetition on the same basis as the other one unlikely.

Though I have yet to see how these issues are to be resolved on
computers used by those who are not legally competent to express
informed consent, shared computer accounts and similar issues.

> "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."
>=20
> That sounds very thin indeed - and ignores the requirement for consent
> from the web page owners.

It does indeed sound extremely thin, and smacks of a police force
looking for an excuse to drop the case,  rather than one that merely
believes it might have difficulty winning one.

Dave.