Police drop BT-Phorm probe

[Peter Fairbrother]

Nicholas Bohm wrote:
> Peter Fairbrother wrote:
>> Nicholas Bohm wrote:
>>> 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
>>
>>  Would this then be a suitable case for judicial review?
> 
> I would have thought so, at least on the basis that the decision not to 
> prosecute was flawed by errors of law about criminal intent and implied 
> consent.  The "not worth the expense" point remains, though, so this 
> doesn't sound a fruitful avenue.  

I'd dispute that point, as the Police also ignored the dual consent 
issue completely - and BT have said that they plan to do a (perhaps) 
single consent version at some time in the future.

What we want isn't so much to prosecute BT, but to stop them doing it 
again - if the Police offered a caution, and BT accepted it, that would 
be okay by me. It would have to be public though.

I much prefer to wind up the website
> owners to assert themselves a little - it's their financial interests 
> they would be defending.

Yes. I have mentioned this to Google, but no reply - but I have 
websites, and "hidden" (non-publicised) HTTP traffic as well. BT/Phorm 
would be intercepting traffic to and from my website server without my 
consent.


The first real problem is getting the money to seek a permanent 
injunction against BT intercepting traffic to and from my website and 
hidden pages. Would it be possible to get legal aid?

The second problem is getting a "class action"-type injunction which 
applies to every website which hasn't actively consented - though this 
might not matter, as they would have to intercept traffic to and from my 
website in order to exclude traffic to and from my website from their 
spying.


-- Peter Fairbrother