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back to article Police drop BT-Phorm probe

City of London Police have decided not to formally investigate BT and Phorm for their allegedly illegal secret ISP-level adware trials, arguing that there was implied consent from customers and it would be a waste of public money. Officers in London's financial district were handed a dossier of evidence against the two firms by …

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on an unrelated point

whatever happened to the "cash for honours" investigation?

It's amazing how many cri^H^H^Hinvestigations can get quietly dropped when left long enough

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Fuckers.

Fucking fuckers.

That is all.

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Anonymous Coward

This is outrageous!

"Implied consent "- MY ARSE! No "Criminal Intent" - MY ARSE! "Product enhancement" - MY FAT ARSE!

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Unhappy

That's a great decision

This means that I can go into the supermarket and walk out with my basket of goods without paying so long as I have no "criminal intent". Speeding is now ok, so long as you don't have any "criminal intent". This really changes the landscape.

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RE:This is outrageous!

Could not agree more!

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Flame

I call BS

Lack of criminal intent is not proof that no crime has been committed.

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Implied consent, too stupid..?

What a pile of crap. Big company breaks law, blatantly, police can't be arsed getting involved because it's a confusing case and doesn't have any child pornography in it, big company gets off.

Bloody daft.

Let's apply "implied consent" logic to some other crimes, shall we? I was round at my mates house, I took my car, and left my car keys on his table. Does this mean I've given him consent to drive my car? Does it bollocks. A postman brings me my mail every day, I trust that enough that I rely solely on him for my mail coming through my letterbox. Does that give him consent to read it? No.

Surely there must be a petition somewhere to bring this to court, you quite simply can't have massive breaches in personal privacy like this, and brush it under the table...

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Flame

Pass the Whitewash!

What a complete, total and utter cop-out (no pun intended).

No "criminal intent"?

So, if I tap HIS communications (purely for the purposes of improving his 'service', of course) then that'd be OK? No? Thought not.

CLUELESS FUCKWIT WOODENTOP!

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Anonymous Coward

shocked

wow - the police being little more then corporate wippets knowck me over with a big can of aids.

But hey the police have imaginary peadophilles to catch (where'd you get this hard disk of pronz from - err you actually - you're knicked!)

David?

Chris?

David?

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F....

Fucking Bastards - what c**t paid them off?

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Alien

*cough*

"To say that there was no criminal intent is to PURPOSELY AND MALICIOUSLY misunderstand the legal requirements for criminal intent."

Fixed. Thank you, CLP, for making it absolutely clear what a bunch of spineless, toadying little wretches you are. ET, because the only way those tossers could possibly explain their dismissal of the evidence compiled and handed to them on a plate would be if they were from another ****ing planet.

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Flame

So you can break a law and get away with it if there is no criminal intent?

Come on this is daft. How can you have a law and basically say "yes, you broke the law but it is OK because you didn't intend to commit a criminal act". Can somebody explain the difference between breaking a law albeit unwittingly and doing so intending to commit a criminal act? My understanding has always been that ignorance is no excuse in the eyes of the law. All those parking tickets I could have avoided - "Sorry officer, I don't understand all these funny yellow lines by the road so I don't have to pay my parking fine, do I?". This sort of thing is reserved for accidental drive-aways from petrol stations isn't it, not 10's of thousands of breaches of RIPA?

How is monitoring and profiling internet usage any different, say, to opening and analysing all the post send to the people concerned? Or recording their phone calls? Or tracking their cars? "Yes officer I opened every item of mail to over 10,000 houses but it is OK because I only did it to gain a competitive edge over my rivals, I didn't mean to commit a criminal act, even though the law says I did"

Can we have an icon for a large pail of Whitewash please?

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Unhappy

Someone should tell DS Murray

that it isn't his job to interpret the law, it's the judiciary's.

It's his job to enforce it, then leave it to the judiciary to interpret it and determine if it should apply in this case. You'd think a policeman would know this.

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Alert

Mens rea

IANAL (thankfully), but I believe that to commit some offences -- those that do not confer strict liability -- you need to establish criminal intent (mens rea). I have no idea if that applies to the offences in this instance, but perhaps that's what the police/CPS were getting at.

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Anonymous Coward

whitewash

As expected, whitewash. I would be completely unsurprised were someone to tell me that a quiet word has been said in the golf club.

Did any of us actually think that the police would bother themselves to investigate anything which wasn't obviously committed by a prole?

Not surprised.

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lack of criminal intent....

since when was that a defence...

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UnFUCKING believeable!

Implied consent? "Can't be arsed", more like....

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What can we say - but corruption

I wonder how much money that cost? And who got it?

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Black Helicopters

FOR FUCK'S SAKE

I am beyond angry with these people.

Rule of law? Obviously a discredited and obsolete aberration as far as the City of London police are concerned.

How about a Judical review?

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No consent

The police reply is not only rubbish, it would appear the police dont even have a basic grasp of UK law.

It is classic case law that you cannot give consent to conditions to which you are unaware. Since the people on the trial were never informed, they cannot have given consent. One wonders who paid the police off, BT or the government?

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"We know what you search for"

I bet Phorm threatened the police with knowladge of their searches and where they go... therefore the case is closed so that hundereds arent opened against the occifers!

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Anonymous Coward

(untitled)

Since any sane person knows there was no implied consent (one has only to listen to the complaints). And since I find it difficult to regard the investigation of a possible crime, a waste of public money. Am I the only one to conclude this story implies those involved with the decision have to be guilty of corruption?

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What we need to remember

The case was handed to a Detective Inspector in CID who confessed having little to no understanding of technology and who originally stated that only Public Authorities fall under the jurisdiction of RIPA.

I am considering filing for a Judicial Review on the grounds that the officer in charge of the case was not "qualified" to manage it by his own admission and that the case should have been dealt with by a team of technical experts.

The fact that I handed the police a very comprehensive complaint outlining which laws I felt had been broken, citing the relevant sections of those laws, directly referencing which sections of the BT internal report provided evidence of the breaches; yet still DS Murray asked me to come up with some questions he could ask BT at the meeting he had with them on Sept. 2nd.

As Mr Nicholas Bohm has been quoted in Chris' article I fail to understand how no criminal intent existed since the intent of the trials was specifically to intercept and modify their customers communications; which is a criminal act. They did not accidentally intercept and modify those communications - the entire purpose of the trials was to do exactly that.

Anyway you can read the full email from DS Murray and my response on:

https://nodpi.org/2008/09/22/city-of-london-police-to-complex-to-spend-public-money/

Alexander Hanff

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Unhappy

Wasn't that surprised, to be honest...

I pretty much expected this cop-out. A case that is not immediately clear to the man on the street, involving a nice big corporation we all know and trust (what, you don't trust BT? Why, what have you got to hide?). And anyway, it was all just about showing a few ads on screen, wasn't it? You get those all over the web, don't you? How's that a crime? Anyway, the internet's a bad place, full of dodgy pictures and terrorist manuals, so *really* BT was doing everyone a favour giving them this "service", weren't they? Weren't they?

Doesn't mean I'm any less disgusted with the decision though. And what do you have to do now when signing up with an ISP - send them a letter listing all the things you do NOT give consent (implied or otherwise) for?

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No Title

You know, I kinda expected this. But I have a question - is DS Barry Murray incompetent or does he merely know which side his bread is buttered on? Its a serious question - in a recorded phone call with Alexander Hanff, he shows ignorance of what RIPA actually is. Surely knowledge of the law is the first step towards enforcing it?

But my guess is that he is in fact not incompetent, despite appearances, but it is very difficult to invent excuses not to investigate when you know perfectly well you ought to.

To be honest, I think this is worse than what BT and Phorm originally did. Yeah, illegal trials happen, companies make mistakes when blindsided by money. But whats worse is when no-one takes accountability for investigating - its a clear way of saying, "Sorry civilian, you dont have a say in how things are run, just go back to paying your taxes and stop grumbling." This shows that with connections in the right place, you can just about get away with murder. You know - I'm going to start a petition to fire Barry Murray for wasting tax payers money - he should have just said BT cant be charged with any crime anyway because of their connections. Why bother inventing excuses?

Lets imagine a scenario for a second - imagine there was a former government owned milk producer, that diluted its milk and used dangerous chemicals to hide that fact, resulting in infant deaths. What has happened here with BT leads me to believe such an entity would be immune to prosecution because of their connections.

PS: Barry Murray's statement about "the aim was to enhance their products" could have been lifted directly from Phorm PR.

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im sorry.

officer, I didnt mean to run over than little girl, I had no criminal intent.

Oh ok then, off you go!

Pish!

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@Someone should tell DS Murray

"that it isn't his job to interpret the law, it's the judiciary's."

.... But it's the CPS's job to bring a prosecution. The lickspittle plod bsatards didn't even hand it over to them. Will someone please rid the UK of these corrupt wnakers before people have to get violent to protect their rights?

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Ash

No criminal intent

I hereby demand that all current detainees for the crime of "Vehicular Manslaughter", where the cause of death was accidental, be released, pardoned, and any pending cases of this nature be dismissed with prejudice.

I shall be writing to my local Government representitive, the appropriate 'WatchDog' agencies, and potentially Internal Affairs, should civilian contact be appropriate.

This is totally outrageous and absurd.

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Flame

I'm going to kill Tony Bliar

As I won't be doing it with criminal intent, rather in the self-evident interests of truth, justice, and the American way, I expect the City of London police to take no action.

Or we could try following due legal process, impeach Blair and put Phorm through the courts.

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Alert

If you're with BT...

call 0800 800 030 / 0800 328 6738, get a MAC code, and leave.

Because no aspect of your data communication is protected. The Police, ICO, Home Office, Ofcom... no one will listen to you when you find your data has been intercepted and flogged.

If you run a UK web site, particularly ecommerce, you need to be *fully* encrypted. If you are communicating from outside UK into this country, you need encryption. If you use email, VOIP, Instant Messaging you need encryption.

Because all of your communication traffic has just become 'fair game' for BT marketing and adware pushers to use and abuse as they see fit.

And your consent is implied.

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No surprise here really...

c'mon we all know that state institutions are firmly on the side of corporates these days.

Who were we kidding?

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Paris Hilton

Ignorance of the law...

It has been a long established principle that ignorance of the law is no defence. Therefore, the argument "no criminal intent" cannot be seen as a valid argument. And as has been pointed out, it is the police job to enforce the law, not interpret it (especially when they don't have the technical knowledge to do so)

However, it needs someone to actually follow this through, raise a civil case and issue a complaint to the PCC - in reality, we will do as Jim Carrey said in "Liar, Liar".

We therefore need an icon for bending over and taking it....... OK Paris will do!

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Black Helicopters

So does this mean...

... I know that he is being done under US law but if it was in the UK does it mean that that Scottish hacker dude that broke into the US military as long as he proves there was no "criminal intent" that he would be let off? Hmmmmmmm numpties, all of them, retards...

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Flame

sick of these bent politicians and police yet??

Lack of criminal intent - erm...

"oh dear i accidentally killed 30 people... i guess i can go free now as it wasnt with criminal intent" ???

"oh dear i have accidentally poisoned all the offices of phorm - all dead - but thats fine as there is no criminal intent! i was mearly trying to get them to smell this lovely liquid i poured into the air con unit"

wtf is happening in this country? police are just as bent as the politicians now! (no shock there i suppose)

and implied content my hairy ass! it helps NO user at all! if i go to a page i expect to see what the page has to offer not what adverts phorm can insert.

yes, the police ARE busy - but that didnt stop 1/2 the met looking for bruce forsythes dog when it went missing did it? or the fact 1/2 of the police service seem to be sat in their cars trying to catch people doing 35 in a 30!

this fucking country is seriously going to the dogs (well, started about 20 years ago when the blues sold off all our decent services - imagine being told then that gas, leccy and trains would get 10x worse over the next 10 years lol!)

is it time for our guy fawkes masks and some serious ripping shit up yet?

dont we need to make a stand against this bent gov and its corrupt police?

on the other hand im sure many pot growers will be happy to know its now legal as there is no criminal intent to growing... its purely medicinal officer...

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Paris Hilton

He going to complain...

Checking my crystal ball(s), I can tell you what will happen.

The complaint will not be substantiated (it never is, even if the Pope witnessed it)

He will appeal to the IPCC ( who will not substantiate it).

He will speak to his MP ( who will not respond with any substance)

He will try any avenue and he still get nowhere

He may need a little lie down due to his frustration at the system or he may not...

Any wonder we now have home grown terrorists?

PS check out Actus Reas & Mens Rea regarding criminal intent, I think Plod are right here. The desire for a company to make a quick buck is not an offence. but to get to the European Court of Human Rights, you have to jump through every hoop going first. Expect a Article 8 (right to private life) ruling in about 10 years.

Paris, cos she doesn't know what to do about the system either

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Implied Consent...

I wonder If breathing was the requirement for implied consent ?

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Silver badge

So next time I get caught inadvertantly speeding.........

I can claim there was no "Criminal Intent " (i.e. I wasn't aware of the speed limit) and get away with it?

Yes?

No?

Didn't think so!

You can't see my icon because, like this case, its covered in whitewash.

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Flame

Wiretapping is wire tapping data & voice

This whole debate gets simpler if you remove the distinction between voice and data. If a BT / Phorm had said "We listen in on your phone calls so that we can introduce you to companies that sell the products that you talk about with your friends." I think BT / Phorm would have got a more comprehensive roasting.

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Unhappy

Plainly one of Jaqui's boys...

...has had a quiet word.

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IT Angle

Err

Shouldn't the CPS be making this kind of decision? I find it bizarre that the Police spent months and millions investigating the non-existent Cash-for-honours affair where it was never clear that any crime had been committed or that there were any victims, yet drops this one as soon as hits their desk.

I don't suspect a conspiracy here; I suspect a load of mouth-breathing detectives thought "oooh computers and networks that's really difficult, let's not bother."

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Stop

Implied consent?

I was a BT customer at the time of the BT/Phorm trials. I took my company to another ISP because of the Phorm trials. And somehow I'm supposed to have given implied consent to such a trial?

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Eh?

How can the Police make a qualitative judgment that BT's intention was to "improve" their service? BT's intention was clearly to make more money, and to do so covertly. What's the Police's definition of "improve" in this case? Is it "to make more profitable" or what?

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Went to a christening over the weekend.....

The priest giving the ceremony asked those congregated to imagine a world where the Allies had lost World War II........I have to say that I was struggling to find differences from the world that we have.

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@Ian Chard

IIRC, mens rea requires a test of reasonableness. Someone up for murder can plead manslaughter if the intent wasn't to kill.

Hit someone with your fist and kill them then a manslaughter plea is reasonable. Stick a knife in their chest and the plea of manslaughter isn't so reasonable.

I can't see any circumstance where BT could reasonably say "we didn't think to check whether these tests were legal", which is their sole defence. They did commit an offence. The question is (and the reason behind the police dropping the enquiry) is that they claim they didn't know it was illegal and it was *reasonable* not to check before proceeding.

Just doesn't stand up, does it?

IANAL either. Perhaps one might comment.

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Paris Hilton

So How Far Does 'Lack of Criminal Intent' Go?

Hang on. If I was to accidentally kill someone (haven't BTW, just being hypothetical) does that mean that I'll get off as there was a 'lack of criminal intent'? Does it bollocks, it means that I'd get done for manslaughter instead.

So what the police are saying is that it's fine to break the law just because you didn't mean to do anything REALLY bad...just capture some info and then use that to target junk mail at those minority of people who use that new fangled interweb thing. So Mr Plod, where's the line that divides 'bad crimes' from 'not bad crimes'?

Paris as even she doesn't want Phorm watching her web activities

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Anonymous Coward

usual story

"we're very busy you know"

"what do you want us to do about it"

(tm) the old bill

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Who ever said City of London Police are lazy

Why does this not surprise me with these jokers. My bike was nicked, they don't even take complaints for bike theft. The desk copper's advice was to not even ride into central London as someone will always be looking to steal bikes. I was knocked off hit and run style in a bus/bike lane by a white van man. City Police said they don't have the resources or access to the traffic cameras to investigate.

They have plenty of time though to perve on 15yr old girls for hours on end at the Broadgate ice skating or ticket you for pulling up 1 metre over the stop line at a set of lights.

I know this is a bit off track but do they actually investigate anything??????

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Flame

"I opened every item of mail to over 10,000 houses"

When postmen do that kind of thing they are likely to get nicked, tried, and locked up for months or more.

If Phorm genuinely believed there was no reasonable risk of prosecution, they presumably must have had good grounds for thinking that. Such as their legal advice, which to date has NOT been released despite being central to this whole process.

Then there's the small (because not necessarily criminal although commercially and morally rather dubious) matter of BT Retail's Cheat Technology Officer at the time of the trials leaving to be Phorm's CTO now: http://www.phorm.com/about/exec_scleparis.php

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Class Action

If it ain't criminal, it's civil, or in this case uncivil.

Any lawyers fancy getting rich?

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Alternatives?

Request a Judicial Review (About £150)

Civil action - onus of proof is slightly less than a criminal prosecution, I believe.

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