Another option re BT and Phorm

[James Firth]

Alexander Hanff wrote:
> Richard Lamont wrote:
> > Alexander Hanff wrote:
> >
> >> The other option is a private criminal case through the courts.  
> >> The police made me aware some time ago that individuals can 
> >> prosecute a criminal case independent of the CPS.
> >>
> >> Obviously the costs for this would be substantial and would require 
> >> significant fund raising; but I really don't see how BT have a leg 
> >> to stand on and provided we have good, strong and experienced 
> >> counsel we should win (perhaps I am being a little naive in my 
> >> faith of the judicial system but I have to believe that common 
> >> sense will prevail at court and BT will be found guilty).
> >
> > Am I right in thinking that counsel for a private prosecutor would 
> > have to prove the charge(s) to the satisfaction of a jury beyond 
> > reasonable doubt? If so, what if any power does a private prosecutor 
> > have, beyond that available to an ordinary citizen, to investigate 
> > the alleged offence? If none, evidence may be as hard to obtain as
money.
> >
> >
> We have the BT Internal report on the 2006 trials, I would hope that 
> would be incriminating enough in itself as to me it clearly 
> illustrates criminal activities.

We're talking about convincing a jury that a rather complicated law has been
broken.  Arguments will have to be presented in a skilful way.  I don't know
the statistics but I'm guessing the number of technically enthusiastic
people amongst the general public is possibly less than one in 12.

Now consider how the opinion of the ICO, civil servants and, apparently, MPs
have been swayed in favour of this technology and couple that with the fact
that you will have no investigatory powers.  They have the ability to sway
opinion, and your case would be reliant on what BT and Phorm hand over plus
any evidence you could muster from the trials over a year or more.

Add into the mix the amount of money the companies will have available to
spend on defence and I wouldn't be too confident about the outcome.

This action could open up a worse-case scenario.  BT/Phorm run rings around
your case, persuade the jury there was no case to answer, you'd be fighting
on a shoe-string budget with minimal evidence and could lose because of
this, can't afford to appeal and the practice becomes legal, in the public's
mind, at least!

Personally I would focus on:
1.) Continue to write/campaign to ICO, departments and MPs.  At the end of
the day you're just dealing with other people and shifting circumstances may
lead to a change in climate
2.) Public awareness.  If you think you could raise 20k+ to fight a court
case why not try and raise 5k and run a small public awareness campaign.
3.) Website owners, both as potential fighting partners and people who may
deploy technical countermeasures to alert people to ISP bit-twiddling.


James Firth