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 …
isn't the decision about whether someone has committed a crime or not up to the courts rather than the police?
At the very least the crown prosecution service should be the ones to decide based on the public interest and likelihood of getting a conviction...
Guess its just too much work for the police when they can get more crime clearances reporting schoolboys for playground fights.
well... I'm not sure about the examples posted above.
I'd liken this to the postman reading my bank statements, in doing this he breaks the law, but they let him off because he says that he has no plans to use the knowledge gained to make some kind of identity theft.
clearly in this case BT were effectively wire tapping.
they deliberately kept customers in the dark about it
and they intend to use the information gained to create a new source of revenue via selling adverts.
clearly they break the law for the means of making profit. I can't understand why this couldn't be investigated.
Well seems like London police are pleading ingnorance since the guy investigating is not technology minded he cannot understand the crime.
Is he in the right job!
Ignorance is no excuse in the eyes of the law so way are the police using it as one,
So now it is legal to stalk someone? as long as there is no criminal intent.
I think it is time to say the Labour government are turning screws on this they must have some money inthe labour funds ffor allowing it to go ahead or on a promise..
Time for no confidance in the labour party , our police force and BT.
They intentionally intercepted communication. Since that is the offence, and they intended to do it, WTF are they smoking?
I really do wish that I'd been surprised by their decision - you know, had actually done anything. Whilst this is certainly not what any of us would consider a sensible response - is anyone REALLY surprised?
I was promised a call back by my local police force when the computer crime department made up their minds - that's going to be an interesting call.
Isn't the difference between these two crimes the fact that murder is pre-meditated (intended) and manslaughter is not (no criminal intent) yet there are specific sentences for both of these.
I've guested it for a long time, but basically the cops do not know the law.
Nor do you or I by the way.
It wouldn't be because BT/Phorm offered to share the information gleaned with the fuzz, would it? It would go something like this:
Dear City of London Police,
This week the following people have obtained or attempted to obtain <kiddie pron / terrierist material / mp3s / warez / something else the State doesn't like>:
Mr A, 1 The Street...
Mr B, High Street...
Miss C, Asbo House...
etc. etc. ad nauseam.
Someone's already replied about criminal intent and mens rea so I won't go into that but
"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?"
You're exactly right, it isn't. However before someone mentions it I will point out that The European convention of Human Rights doesn't apply to private companys. Its there to protect us from our government but not from each other.
I cba to look but it may well be that the law governing interception of communications says something its illegal to do it "with intent to.... " something. Which they didn't
Basically that extract is a more complicated way of the police saying its a civil matter (breach of contract) so take it up with BT yourself.
But ISTR that RIPA contains a requirement for _explicit_ consent, that being pretty much the crux of the whole fucking argument, viz there CAN NOT BE IMPLIED CONSENT.
So clearly inspector fuckwad of the yard can't read legislation any better than BTs shyster lawyers.
And yeah, for "no criminal intent", read "it's clear that there have been breaches of the law, but frankly, we just can't be arsed". Bastards.
Someone mentioned mens rea, mens rea is about culpability, sure, but lack of criminal intent wouldn't get you off the hook mens rea wise, since you can still have a culpability for doing something recklessly or negligently (criminal negligence, in fact). Failure to establish mens rea doesn't get you off, it just mitigates the remedy, I think. IIRC my English common law, which I might well not since it was many many moons ago. Someone please please correct this if it's horse shit.
Oh well, time to venture outside for stamps and printer cartridges again. Utter utter bastards.
BT operate in the regulated sector and only the appropriate Regulator of that sector can forward criminal allegations from the public on to the police.
This will only ever be done on the say so of BERR (DTI).
That is why the £11m BT call centre fraud was never prosecuted.
That is why the Suffolk Police didn't prosecute BT for their part they played in the multimillion pound internet dialler fraud from 2004.
Throughout 2004 BT had been billing 3500 premium rate numbers belonging to Telecom One ltd which were mysteriously appearing on phone bills.
In June alone of that year the Regulator and BT received in excess of 25 complaints for each and every number. Despite the high level of complaint indicating the use of illegal software BT and Telecom One were allowed to continue billing and banking.
It wasn't until 2005 that Ofcom finally decided to order Telecom One to identify the internet services that BT had been billing for. Ofcom decided to close the case because the 'service provider' had left the 'market'.
Some of you guys should do some digging into the DTI/Regulator/BT cozy relationship.
Well, why should something like this be any different. In Bedford, we have falling crime, but this is chiefly because there are no police in the station to take a complaint, so reported crime falls. Is anything or anyone any safer? No, only the criminals who have even less chance of being caught.
Since the general public had no say on whether they wanted to be spied upon in this debacle, how could there be implied consent? I am sure that the plod (or PR bunny) who made the statement should have used the word "inferred" at least. Of course, such a niggling point of semantics obviously pales into insignificance when the word "whitewash" comes so readily to mind.
More like Mens Rear- in that no criminal intent means you're not a criminal = MY ARSE. Ignorance has never been a defence, or the RIAA / MPAA wouldn't ever have had a case against most of their victims so far.
This is utterly ridiculous. For a start there's no way the Police should decide what crimes are and are not worth investigating- just a lazy day or a bad hangover and they'd just drop half their workload.
Someone should start tapping DS Murray's phone lines to make sure he's not getting too many hateful calls or telesales people. Such a huge improvement in his phone service would surely make this entirely legal so long as no equipment was damaged?
Evil fuckers, the lot of them.
I'm not at all surprised by this 'decision' - it reeks of both 'we can't be arsed' as well as the hand of the old-boy network, and it confirms what a lot of people likely knew already with regard to the effectiveness, or not, of the police.
Whilst I cherish my ignorance with respect to the finer points of the law, surely there's scope for setting up a fund of some description and then using the proceeds to hire a decent lawyer (assuming such a beast exists) to carry the case forward? There's probably a proper name for it, but I'd envisage something along the lines of the NO2ID 'defence fund'.
Hell, I'd be more than happy to contribute a few quid to the cause if only to prevent further abuse of 'implied consent' and 'lack of criminal intent' (both pure-quill weasel phrases if ever there was). Cutting BT down to size would be an additional bonus.
Flames, 'cos I'm sure there's a nice circle of Hell waiting for the phuckers at BT and Phorm.
So, they did not intent to intercept communications???? Phorm hardware accidentally assembled and connected itself in BT exchanges? If not, there is proven criminal intent indeed. And the pitiful attempts at arse-covering by BT and Phorm ("I axed my brother-in-law, who used to know a lawyer, he said it was OK") make it so obvious that it hurts.
So Brit plods just won the gold medal in my personal moronlympic games (and I thought beating US "homeland INsecurity" would be a tough job...).
So, we're told that there was no criminal intent. BT carried out a trial that _required_ consent to be legal, they did not obtain said consent. They _chose_ to perform the trial knowing that consent was not given. That is mens rea without a shadow of a doubt.
If any one of us committed another illegal act in a similar manner then we would be bang to rights and very likely to be charged and prosecuted, probably without a leg to stand on.
Disgusting decision, someone needs to get a serious arse-kicking from high up in the Ministry of Justice (don't make me laugh!) and be forced to reconsider this cretinous act.
Spitting blood here, black helicopters or not!
There was a saying, I recall, something like; All that is necessary for the downfall of evil is that good men post their righteous blather on a forum, that'll fix it good & proper.
No, that wasn't quite it.
Go and do something about it FFS.
I'll try get on to someone at the met tomorrow + see if I can get ahold of Mr Hanff. Based on that I might get back to the ICO. I will get back to the EC regardless.
I'm getting a bit bloody narked at all the talk that doesn't seem to get backed up by any action (with a few exceptions).
If the EU fail to act on this and stop BT and Phorm, there is only likely to be one outcome; thousands of very technically-aware (not to mention incredibly pissed-off) customers:
a) Leaving the companies involved (i.e. BT, Virgin, etc)
b) Dispensing their own vigilante justice on the companies involved (either online, or otherwise)
And the UK Government's failure to act against Phorm and BT and treat their citizens with the contempt they have currently shown, may also place them in the firing line.
... to some degree or other. If (quick example) in some public place I picked up and walked off with someone's luggage and they never saw it again then then that's not theft if it was an accident. If I did the same deliberately then it was, even if the end result (they lose it permanently) was the same. The intent here is central, I understand, though proving intent or lack thereof is surely tricky.
But IANAL and I don't believe BT merely forgot to mention it to us customers.
Seems to me that the London plods (as an American, I **love** that term!) have just given just a bout everyone a "get out of jail [sic] free" card. Simply show lack of criminal intent, and away you go!
Were I a lawyer, I's be praising JEE-zus at this brand new revenue stream.
if you're BT you can have a quick word with the cops and have people's doors kicked down for making donations from the wrong kind of web browser or modify ( http://linuxreviews.org/news/2005/01/28_0001/ ) and leave people with a criminal record for modifying the location bar ( http://www.theregister.co.uk/2005/10/11/tsunami_hacker_followup/ ) but when it comes to intercepting and monitoring everybody's internet usage it's alright because there is "implied consent" and "no criminal intent".
So does this mean rape and manslaughter have just been legalised too?
He could do well to read and *understand* RIPA, as he's meant to understand these things, but clearly doesn't.
Let's hope that the European Commission has got enough spine to continue with their investigation... oh, was that a flying pig that went past?
I don't buy it.
The determination of whether a crime occurred or not isn't really up to the police. The proper thing here is that they cannot find sufficient evidence to go forward with a prosecution. That isn't what they've said. This may be a verbal slip or it may be indicative of something more sinister.
Criminal Intent or lack thereof should probably be left to the judiciary. The idea of "implied consent" is/should be a judicial decision. It is a potential defense, but shouldn't be a defence at the investigative level.
The police's job is to investigate. Then to pass on recommendations and evidence to the CP (or british equivalent). The CP's job is to determine if there is justifiable grounds to seek a conviction, not the police. Nor is it the police's job to try and defend the suspected individual.
The police here are trying to do the judiciary, and (both) the lawyers' jobs here. Someone should probably let them know that they should be focusing on investigation.
If for no other reason than clarity, this should probably go to court to determine "implied consent" and its validity in communications interception. That's a public policy argument.
But that's just this foreigner's opinion. IANAL.
. . . but very disappointed this has been swept under the rug, unless the right volume of complaints from public to UK/EC authorities hit at the right time I fear that no action will be taken at all.
As for the EC agreeing that BT's customers would be unable to understand the intent and workings of Phorm's system, it doesn't matter! If it contravenes RIPA or any other statute surely the UK government and the EC have the objective to step in to protect the average citizens interests!
Disgusted at this decision.
No criminal intent - that's nonsense. It's arrant nonsense. These police types know what criminal intent means. They know what section 8 of the Criminal Justice Act says, and it is disgraceful that they have chosen to disregard it completely.
BT and Phorm (or whatever they called themselves then) processed personal data (including sensitive personal data) without the knowledge or consent of the data subject. They intended to do that processing, they intended not to inform the data subject, and they intended not to obtain informed consent for the processing. That's criminal intent. They committed about 10000 offences with clear and obvious criminal intent.
BT and Phorm interecepted communications in the course of transmission by a public communications system without the consent of both parties to the communication. They intended to do that interception, and they intended not to obtain the consent of either party to the communication. That's criminal intent. They committed another many tens of thousand offences (one for each communication intercepted) with clear and obvious criminal intent.
Unless of course you want to believe that they didn't intend to do those things - that they did, for example (despite their clear admission that they did not) intend to obtain the consent of the people whose communications they intercepted and whose personal data they processed, or that they didn't actually that the data should be processed, or that they didn't intend to get hold of any communications while in transmission and make them available to someone for a purpose other than the purposes of a public communications system.
They even claim to have taken legal advice about what they were going to do - a pretty clear that they intended to do it. Apparently they got bad advice - but that doesn't remove the criminal intent, not for one moment.
They probably broke other parts of the data protection legislation (did they register this processing of personal data, as required by the act?) and (if they were using a cookie system to handle the classifications to select adverts) they were clearly (since they obviously knew how cookies worked) reckless as to whether sensitive personal data would be exposed to third parties (reckless as to the consequence of their action - that is enough to satisfy the requirement for mens rea if handing that sensitive personal information to the web sites involved is illegal) but let's just concentrate on the tens of thousands of big and nasty offences. and ignore the tens of thousands of minor ones.
Anyway, we now know what the data protection act means: It is an offence to process sensitive personal data without jumping through the appropriate hoops - unless of course the processor is one of the Establishment's friends in big business and the data subject is one of the common people.
And of course the RIP act means that it's an offence to intercept communications in certain circumstances, but those circumstances don't include any where the interceptor is one of the Establishment's friends in big business and at least one of the parties to the communication is one of the common people.
Can I got to the UK, go on a drunken bender and get off by saying I had no intentions on smacking that girl, its the liquors fault ?? or do I have to be a CEO of company with millions of quid to hand out .
I have feeling this cop was hand a shit pile of a case and was told only file if he finds something. Of course there was nothing to find because the files were redacted and he was bared from asking the right questions.. If his superiors even thought he found something, he would been taken care of. Extreme porn would of been found on his work computer.
If a law exists and it does, and BT are aware of it, and they were, then when that law is broken there must be criminal intent on BTs part.
How can intentionally breaking a law show no criminal intent?
oh, they were breaking the law to improve their product (and make more money), thats OK then, my mistake.
The very first paragraph of RIPA states:
"(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of—
(a) a public postal service; or
(b) a public telecommunication system."
The law is perfectly clear. There is no question of criminal intent, merely the intent to intercept, which was certainly there. The only question remaining: is plod thick or corrupt?
The eve of the war...
By Anonymous Coward Posted Monday 22nd September 2008 18:11 GMT
If the EU fail to act on this and stop BT and Phorm, there is only likely to be one outcome; thousands of very technically-aware (not to mention incredibly pissed-off) customers:
a) Leaving the companies involved (i.e. BT, Virgin, etc)
b) Dispensing their own vigilante justice on the companies involved (either online, or otherwise)
And the UK Government's failure to act against Phorm and BT and treat their citizens with the contempt they have currently shown, may also place them in the firing line.
OK - I posted this anonymously, but I'm now so sick of this pathetic inability of anyone to take responsibility, that I'm now posting my name.
Paul Gomme - some readers may already know me. What I'm asking of all anonymous posters is "Don't stay anonymous" anymore. You all hold sway and have expertise in this field. You may not be security experts, nor legally trained, but you can add your voices, expertise and experience to this debate, and together we can stop these plans from going ahead.
Make a stand - show your names, give out your email addresses (you can find me on Facebook and LinkedIn). We don't have to suffer this abuse, and if we all stick together with the aim to defeat Phorm, we will.
Don't let them underestimate the power of the so-called "Nerds/Geeks". We can, and will, win this in the end.
Where's the EU when you need it? C'mon guys, help us out here!
Alternatively, BT customers could go the Amercian route and take a Class Action lawsuit. Even if this did go to the criminal court you'd only be looking at a slap on the wrist of a few hundred thousand quid anyway. Sueing BT in the civil law courts could be much more embarrasing and expensive for the sneaky buggers.
Since the esteemed DS whats-his-face says, in effect, no crime has been committed, I presume his notes are fair game for an FOI request. A very broadly phrased FOI request at that, including telephone logs and all else.
I hope Alexander Hanff proceeds to tie the cops, Phorm, and BT into little knots. Those of you directly affected by this would do well to send him money, as legal proceedings are never cheap. The more money he has, the more of a pain in the ass he can make of himself in respect of this travesty of a police report and who knows? maybe someone somewhere will wake up to the fact that this kind of nonsense on the part of the cops "brings the adminstration of justice into disrepute."
I suspect some members of the judiciary will be most displeased to find that the cops are now deciding if a crime has been committed.
Frankly, this decision is disgusting.
PS: And Gordon Brown wonders why NuLabour is so unloved? Is the man a dimwit, or is he merely stupid?
Ridiculous words, "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."
What evidence is there to substantiate this 'Belief'?
I really would like to know what the Home Office comment is on this. Let's see some references, exactly where is the evidence to back up this statement?!
Oh, I know... it's in that "Premium Browsing Research Findings" paper I bet.... Well, they should bloody publish it!!
What a pile of turd muck. Hot air and it smells rotten.
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