Police drop BT-Phorm probe

[Nicholas Bohm]

James Firth wrote:
> Alex Hanff wrote:
>> Nicholas Bohm wrote:
>>>>  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 much prefer to wind up the website
>>> owners to assert themselves a little - it's their financial interests
>>> they would be defending.
>>>
>>> Nick
>> I am considering this on both fronts Nick, both judicial review and
>> starting a campaign for content owners/publishers.
> 
> The costs could be staggering.  IANAL but I believe in a technical case such
> as this the police force involved could spend 100-200K on the defence.
> You've also got your own counsel's costs to add to that.  I believe you
> could apply for a protective costs order (think this is what it's called)
> limiting your liability in the event you lose, but from the little I know
> about this you will still likely have to stake a proportion of the estimated
> costs, say 10%, towards the defence costs if you lose, and in return for
> this the defence is likely to be limited to the same liability if you win.
> 
> I believe to get a PCO requires that action be shown to be in the public
> interest and are not awarded lightly.  And then unless you've got at least
> 500 people willing to donate 100 quid or any similar combination it could be
> a non starter.  Add to that the fact that even if you win, it doesn't
> guarantee a prosecution - only that the police hands the case over to the
> CPS, who could still refuse to proceed on the public interest argument (BT
> and any other ISP are unlikely to do a secret trial again so what would any
> prosecution achieve) I can think of better ways to spend 50K if you want to
> try and stop ISPs profiling traffic.
> 
> Add to that the time it could take to get the action moving...
> 
> There was some passing mention a while ago in the HoL about a test case to
> determine whether this type of profiling constituted interception (and
> therefore required the consent of both parties).  This would be ideal as it
> could be funded by the people who stand to gain (BT and the ISPs) but I
> can't see how we can pressure the parties involved whilst government and
> agencies (BERR, OFFCOM etc) see Phorm as the enterprise darling under attack
> from a vindictive vocal minority.
> 
> Why not wait until the system is rolled out then look at ways to proceed
> using, as Nicholas says, content owners and specific examples where traffic
> from web-based messaging services is "intercepted"?

I don't think attempts to obtain judicial review of the police refusal 
to proceed are worthwhile - they can find perfectly legitimate reasons 
for not proceeding to replace the doltish reasins they have so far 
given; and I agree with Charles that the DPP is unlikely to give consent 
for a prosecution anyway.  This is a blind alley.  Much better to target 
website owners to persuade them to take steps to prevent Phorm from 
poaching their customers.

Nicholas
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