Another option re BT and Phorm

[Alexander Hanff]

James Firth wrote:
> 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
> 
> 
> 
I appreciate your comments James but failure to act through the courts
will have the same effect.  The current situation is that to all intent
and purposes BT's illegal, covert trials are being reported as legal by
the press and media as a result of CoL Police refusing to move forward
with a prosecution.

My concern is if we don't "nip this in the bud" the practice will become
legal by inaction anyway and the next thing we know every advertising
company in the world will be jumping on to the wagon with the horses
that have already bolted the stable, firmly harnessed for a race to our
private communications.

BT need to be held to account for the covert trials to send a clear
message to the industry that such activities without explicit informed
consent will meet criminal penalties.  For BT to be immunised against
prosecution by an incompetent police force leaves a very bitter taste in
my mouth and is a seriously dark illustration of where our country is
heading.

I am of the mind that no matter how difficult it may be or how long it
may take, backing down simply is not an option.  BT broke the law and
Phorm were complicit; they simply can not be permitted to get away with it.

Regards,

Alexander Hanff