Police drop BT-Phorm probe

[Nicholas Bohm]

Peter Fairbrother wrote:
> 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?

There's not a lot of that about these days.

> 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.

Class actions don't work usefully under UK rules because they don't 
confer benefits on those who don't join in.

What is needed is for a few of the majors to get together once they 
recognise the threat to their business model.

Nick
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