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back to article Brussels to sue UK over Phorm failures

The European Commission has revealed plans to sue the UK government over its failure to take any action against BT and Phorm for their secret broadband interception and profiling trials. Last year The Register revealed the pair had run covert wiretaps on tens of thousands of broadband lines in two trials in 2006 and 2007, to …

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Eh?

"The ICO accepted BT's argument that it would have been hard to explain Phorm's interception and profiling system to internet users whose communications it was being tested on."

So if it's too difficult to explain WHY and HOW you're monitoring someone, it's OK to go ahead?

Presumably that means I can tap phones too, as long as I have no good reason and only do it to people who don't understand the technology involved?

Bah!

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Gates Horns

Oh really?

"The ICO accepted BT's argument that it would have been hard to explain Phorm's interception and profiling system to internet users whose communications it was being tested on."

So its not illegal if the person you are logging does not know/understand whats going on.

Is that just like saying "I hacked into that shop you just ought something on and stole your credit card. But its too technical for you to understand. So you cant call the police on me"?

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I wuv the EU!

Thank you Viviene Reding!

Lets hope something actually happens now. Perhaps now that they are faced with legal action and a hefty fine, the government will stop the cronyism and do something about it. Of course, I'd rather that the EU impose the fine than the UK gov, since we know how lighthanded the UK gov will be on its cronies.

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Good.

I hope uk.gov gets fined even though the taxpayer will have to bail them out in the end of course.

I reckon no action was taken cos uk.gov wants the project to go ahead so they can have access to all the data under data retention laws, thereby creating a very large traffic logging system at no cost of all BT customer traffic, BT being the largest ISP.

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lol

What happened to the term "Iggnorance is no excuse in the eyes of the law"?? Oh wait the Laws ni the country get re-written to suit

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Pirate

Not in whose interest?

As stated by the MET: Prosecution is not in the publics interest.

So the EU sue the tax payer (via government)

Well, It is in the taxpayers interest now!!!

MET wake up. and lock up.

'the bigger they are the harder they are to fell'?? no its 'the harder they fall!'

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"hard to explain" - crappy excuse, eh?

Notice that the statement that "The ICO accepted BT's argument that it would have been hard to explain Phorm's interception and profiling system to internet users whose communications it was being tested on." is in the past tense.

This statement is a total fabrication - it's even a feeble attempt to characterise past conversations in such a way as to excuse the handling of this whole sorry mess up until now.

Moreover, I think it's fair to say that this statement should actually be interpreted as:

"The ICO did not have sufficient technical understanding of Phorm's interception and profiling system and, to save face and get any kind of decision made within 20 years, accepted BT's argument that it would have been hard to explain the system to internet users whose communications it was being tested on."

That's what I read between the lines of this utterly pathetic excuse.

I want an apology from Gordon Brown for this one! :-) arf arf

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Pirate

'Intentional' interception?

So are the government are trying to claim that the Phorm trials happened by 'accident'?

The Phorm trials were deliberate, malicious abuse of private communication traffic by a company with an extended history of developing polymorphic spyware.

It was no accident.

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Great

This is great news, because human rights are enforced in a twisted sort of way in this country, so this makes me be thankful for the EU membership.

I've come to understand that in this country people who openly want to cause harm on a massive scale can apply and get financial and other kinds of support backed by us the taxpayers, while innocent people's rights are not protected when having their freedoms/rights violated.

For examples of the former see Abu Hamza, etc.

for examples of the latter see DeMenezes, Tomilinson, etc.

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Joke

More Euro meddling!

How DARE the EU think is is above the UK government on these shores. We fought WARS and THOUSANDS DIED to keep these shores safe from foreign control!

The EU should have NO SAY in how the UK government allows companies, agencies and departments to invade and destroy the public's privacy.....err.....hang on a mo'.....

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Black Helicopters

This only punished the taxpayer

So the Eu is going to fine the UK for illegal wiretapping. The taxpayer picks up the bill. So we are essentially paying for the privilege of being spied upon?

Surely the correct approach would be criminal sanctions against the individuals involved; those people responsible at BT, at Phorm, at the Met, and in government.

AC, because you never know who's listening, but you can be fairly sure that anyone who is is not your friend...

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al
Paris Hilton

My analogy of "hard to explain" bit

So it would be okay to go ahead and sleep with PH because it would be so hard to explain it to my wife. ;-)

PH, coz she can make things hard.

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Thanks EU!

Never thought I'd say this but it's news like this that makes me think that maybe there are good reasons to be part of the EU after all!

Thanks Viviene & team!

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So sad that we have to rely on Brussels to protect us

Nuff said really.

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Ed
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Good news, on the face of it...

...until you consider where the money to pay the fine ultimately comes from. It comes from us! Our government has failed to protect our privacy, and as such they are fined which comes out of money *we* have paid in taxes.

I'm glad that something is finally being done about this, but fining the people who have been affected by the wiretaps is not the solution.

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Excellent

Apart from who will pick up the tab....

But, hopefully, this will dissuade Virgin and Talk Talk from going ahead with their own schemes to introduce Phorm.

It's about time the government remembers who they answer to.

Where's that V for Vendetta icon....?

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Go

Fine by me.

I don't care that the money to pay a fine would come from the taxpayers, if the aftermath helps toward blowing Phorm out of the water then it's money well spent as far as I'm concerned.

Besides, they would only spend it on soft core porn and bath plugs anyway.

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@More Euro meddling!

Exactly the attitude that has me wanting to leave the UK ASAP and I'm as white & English as they come (no not nationalistic or racist to the ones about to hit the BNP/etc button).

Have you seen the shithole the UK has turned into? Those things over your windows are called curtains, open them and LOOK OUTSIDE.

Or maybe you live in one of the very few remaining idyllic areas of the country which still feels like 40 years ago...

Thank fark I can speak more than just English (thanks to the education system of yesteryear, may it rest in peace).

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Flame

die phorm die!

burn in hell you orwellian bastard child yay for the eu for once!

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Unhappy

more stealth tax

Great, so I'm paying because my government didn't fight something I didn't want in the first place ... great

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Anonymous Coward

Eh? V2.0

"Under UK law, which is enforced by the UK police, it is an offence to unlawfully intercept communications. However, the scope of this offence is limited to 'intentional' interception only."

"Moreover, according to this law, interception is also considered to be lawful when the interceptor has 'reasonable grounds for believing' that consent to interception has been given. The Commission is also concerned that the UK does not have an independent national supervisory authority dealing with such interceptions."

Go on then, you've got me. How do you unintentionally intercept communication?

Reasonable grounds for beieving that consent has been given? How could they possibly believe consent had been given when they hadn't even sought it? Are they saying it's reasonable to believe that consent would have been given had they bothered to ask for it? Presumably their "reasonable grounds" are that they are a bunch of cheeky twats. "Yes m'lud I took the Ferrari without the owner's permission, but I had reasonable grounds to believe that he would have given his permission had I asked for it."

The more that this shite goes on the more popular proxies and https will become.

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Anonymous Coward

Too hard to explain ?

How hard is it to explain how the BT Retail CTO at the time BT were denying the trials, one Stratis Scleparis, ended up as CTO at Phorm a few months later?

http://www.phorm.com/about/exec_scleparis.php

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Go

Criminal Charges

OK so the UK Government gets fined, we pay.

BT get fined - they are a monopoly - its customers pay.

So I would like to suggest the EU bring criminal charges against BT. A prison sentence would be a good deterrent.

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Paris Hilton

Hitewise: the elephant in the room

At some point surely someone must mention Hitwise? Hitwise have had boxes in the ISPs monitoring internet usage (sorry, I think I am meant to call it wiretapping) for years.

The difference is they have been doing it in a *non-invasive* manner and aggregating the data. Perhaps the government should have a word with them to help understand how to explain the issues and how best to legislate on them?

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Unhappy

A sad day

Its a very sad day for democracy in this country when an unelected multinational body has more concern for our citizens than our government

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Initial fine only the start

Note that even if the EC decides to fine the UK govt over this that doesn't mean they have done their time and can then ignore the issue. The fine is just a hurry up, they still have to substantively address the issue and make the changes required. The sanctions just get bigger and nastier if they don't. So fear not, this will be no slap on the wrist.

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Anonymous Coward

The CPS is the REAL problem

The real problem in England & Wales is the CPS (in Scotland its the Crown Office). As long as you have a department WHOLLY AND EXCLUSIVELY controlled by govt which decides what prosecutions are "in the public interest" then you have NO rule of law.

What's required is a grand jury system, which the UK had until the 1930s (IIRC) when politicians finally got rid of it after many years trying.

The UK has "crony law" and has absolutely no business lecturing any other country on the planet about the "rule of law". Thank fuck for the EU!

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@Not in whose interest?

You have a point, in that if UK.gov gets fined, that essentially means we get fined. I wish there were some way that the EU could force the UK.gov to be accountable and only UK.gov.

What should happen is that those personally responsible should be fined from their salaries, and possibly barred from public office. Then, BT should be sued, and the execs who decided on the covert trials should get jail sentences. A man can dream right?

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Joke

Thank you BT

Brilliant!

I now support the BT/Phorm position 100%.

Get lost you interfering EU persons!

I feel safer in my country knowing that if I ever find myself detained for 42 days for no reason, I can invoke the "You are all too stupid to understand me" defense and the powers that be will simply crumble in the face of such a cogent argument.

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Black Helicopters

Phorm's business model relies on illegal interception.

***"The EU Directive on privacy and electronic communications requires EU Member States to ensure confidentiality of the communications and related traffic data by prohibiting unlawful interception and surveillance unless the users concerned have consented (Article 5(1) of Directive 2002/58/EC)."***

The "users concerned" in any web interaction are the ISP customer and the web site owner. If Phorm / BT didn't / don't ask for explicit permission for the interception of traffic between a web site and a visitor then they are in direct contravention of the Directive.

Irrespective of whether Phorm / Webwise offers ISP customers an opt-in or opt-out, unless they refrain from intercepting data from web sites that have not explicitly opted-in then they are operating *illegally*!

That, effectively, means that Phorm can only legally profile sites that are Phorm / OIX partners. This gives those sites no commercial advantage. The upshot is that Phorm's business model relies on an *illegal* mode of operation.

Phorm can never be viable *and* legal.

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We all know the police were too busy looking through rubbish.

Sadly, the police are more likely to use their new-found law creating powers to spread fear and mistrust throughout the population -- can't have people using mobile phones or cameras can we?

As has been said -- the fine is a pointless extra tax for us sheep -- surely the police should be investigated for failing to follow up on the report of a crime and those responsible for this should be imprisoned?

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ICO logic

[quote]The ICO accepted BT's argument that it would have been hard to explain Phorm's interception and profiling system to internet users whose communications it was being tested on.[/quote]

So, lets say I someone ran over the BT CEO's kid, killing them.

Following BT's logic, it would be better hide the body and not tell him about it. As, after all, telling him you've murdered his kid is "hard to explain".

I'm of the view that if the EU win this, we should be pursuing criminal prosecutions against these at the ICO who went along with BT's argument.

It stinks of back handers and corruption in general.

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Yay!

We've all given the EU stick over its straight-banana laws and such like, but this really proves their worth, yay for the EU!

We saved your arse from the Nazis', now you save us from our rotten government and Nazi-like telecommunication monolith.

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i want you to have my babies Viviene !!!!!!! :O)

only one word needed :-

YIPPEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE !!!!!!!!!! :O)

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@Criminal charges

I like this.

Put BT in prison, LOL.

ESPECIALLY customer support, doubly so ;o)

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Stop

Another EU law they should enforce... But don't!

Off topic I know, but there is another piece of EU legislation that the British government choose to ignore.

EU rules state that all items bought new in Europe should come with a two year warranty. Try getting any shop to comply with that!

Viz: DIRECTIVE 1999/44/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 25 May 1999

See: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999L0044:EN:NOT

Bastards, one and all...

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Happy

@ g e

You might want to take note of the "Joke Alert" icon in future...

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Gold badge

Hard to explain?

Really? I'll have a go then.

"We're going to intercept and look at everything you say and do on the Internet to prove that we can."

There, that was simple. If the ICO hasn't got anyone who can work that one out then they must be recruiting from the shallow end of the gene pool.

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Vivat Europa!

Let's all remember this in June and make sure we vote for pro-EU candidates in the European elections.

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Flame

'Intent'?

"The Commission said: "Under UK law, which is enforced by the UK police, it is an offence to unlawfully intercept communications. However, the scope of this offence is limited to 'intentional' interception only."

Oh so I guess that BT/Phorm only 'accidentally' snooped on everyone's web browsing then huh?

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About time!

It's about time someone started taking note of the UK's laws.

What a shame we can no longer rely on government or the police in the UK to enforce them anymore.

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*phew*

Glad to see more bad press about this repugnant technology. I was fearing they were on an upward curve after seeing this :

http://news.bbc.co.uk/1/hi/technology/7988154.stm

Nice to see them redefine 'trawl' to meet their evil needs.

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Happy

Shurely Shum Mistake

Hmmm, AFAIK Phorm isn't live with any ISP at present. Therefore it's hard to see on what basis the EU have based their accusations unless it's outdated/uninformed information spoon fed by the antis.

If consumers opt-in as part of their ISP contract, perhaps as part of a discount scheme or something similar, and are fully aware of the consequences then any Privacy issues are null and void.

Since no-one outside Phorm and their partners has any idea whatsoever how it will be implemented, and there are various options available, this all seems to be a bit of bargaining by the EU to force the UK into accepting some other bit of legislation.

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Stop

Missing the point

The Germans, French...... (keep on adding to this list until you get bored) don't pay their EU fines. So why should the cash-strapped British Govt?

This is a win-win situation for the politicians; The EU is seen to act tough, and Labour ignore them (spin this as "Protecting the British Tax payer from Brussels Bureaucracy" and the Charmless Man may even get a few more votes)

Nothing is going to change for the rest of us.

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@b Ahhhh

But I don't see the icons... maybe I should ease up on adblocker+

I didn't REALLY think anyone was going to put all BT staff (and their gear) in prison, however... Not that it wasn't an amusing thought, mind you.

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hahaha

And now I can see WHICH comment has the joke alert icon...

D O H

The UK has still become a shithole though... Standing by that one.

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@zerofool2005

"I hacked into that shop you just ought something on and stole your credit card. But its too technical for you to understand. So you cant call the police on me"?

Yes in principle, no in practice. You are you. BT are a global corporation who can hire ex ICO employees at good salaries and (AFAIK) the ICO seems to be claiming that it does not regulate non governmental wire taps and (it appears) neither does anyone else. It seems to be claiming that no one thought their would need to be a regulator to cover this area as no one could run a business on large scale un-requested wire taps.

And note how eager this government has been to comply with the EU data retention directive, rather less so with its Privacy Directive, which is substantially older.

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Tom
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So they have to create a new law...

That they can ignore just like the old law.

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b
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and are fully aware of the consequences

Then I'll eat my hat.

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Trickle-down or pissed on?

Mandelson's laws of Light-Touch regulation.

1 Thou shalt not impede in any way whatsoever an enterprise that is fully engaged in the wealth creation process which will eventually, by means of the trickle-down effect, enrich everyone.

2 For the purpose of wealth creation it will be legitimate to disregard old-fashioned concepts such as 'citizen's rights' and replace them with the more appropriate term 'consumer's obligations'.

3 Those who generate the nation's wealth will receive special consideration and easy access to government ministers when they feel they are being obstructed in their pursuit of legitimate profits.

Mandelson is quoted as saying "New Labour has no problem with people becoming filthy rich, provided they pay their taxes". So how did that work out, Pete? As we all know they did in fact become filthy rich at our expense and promptly off shored their profits so that they didn't have to pay any taxes. Who's a clever boy, then, Petey?

Phorm came late to the party having suddenly realised that UK inc. would welcome any old sleaze bag outfit with open arms. Did I forget to mention another one of Pete's great ideas, an open invitation to the Florida Mafia to set up forty 'super casinos' in the UK?

Thanks to our more civilised European neighbours we may yet be spared the attentions of the despised Phorm outfit. Here at home our best option looks to be a hung parliament with a strengthened Lib Dem party able to put the mockers on the other two 'greed is good' mobs.

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