Police drop BT-Phorm probe

[Igor Mozolevsky]

2008/9/23 David Biggins <David_Biggins@usermgmt.com>:

>> 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.

Although you could infer that the mere act of asking for advice
indicated that they knew they were questioning the legality, and just
because they sought advice from an incompetent party should not
absolve them of responsibilities under the law.

>> 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.

I would guess if you are using someone else's account/machine then you
effectively waive your right to privacy, and here you could argue
implicit consent?

>> "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.
>
> 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.

This just sounds like a simple cost-benefit analysis: the police and
the CPS would probably have to spend thousands of pounds investigating
the case (hiring experts, etc) which may or may not yield a
conviction. I would speculate that from the point of view of the
target-driven policy, the time and money are better spent on "easier"
cases.


Cheers,

--
Igor