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 …

COMMENTS

This topic is closed for new posts.
  1. Pete

    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

  2. Lupus
    Thumb Down

    Fuckers.

    Fucking fuckers.

    That is all.

  3. Anonymous Coward
    Anonymous Coward

    This is outrageous!

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

  4. Anonymous Coward
    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.

  5. Lee Fear

    RE:This is outrageous!

    Could not agree more!

  6. Anonymous Coward
    Flame

    I call BS

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

  7. Tony Barnes
    Thumb Down

    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...

  8. dervheid
    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!

  9. Anonymous Coward
    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?

  10. Anonymous Coward
    Thumb Down

    F....

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

  11. Nick Palmer
    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.

  12. Gulfie
    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?

  13. Anonymous Coward
    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.

  14. Ian Chard
    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.

  15. Anonymous Coward
    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.

  16. Anonymous Coward
    Thumb Down

    lack of criminal intent....

    since when was that a defence...

  17. Andre Carneiro
    Thumb Down

    UnFUCKING believeable!

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

  18. Gordon Pryra

    What can we say - but corruption

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

  19. Anonymous Coward
    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?

  20. Anonymous Coward
    Thumb Down

    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?

  21. Daniel Bennett

    "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!

  22. Anonymous Coward
    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?

  23. Alexander Hanff
    Thumb Down

    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

  24. Anonymous Coward
    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?

  25. Jonathan

    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.

  26. Aortic Aneurysm
    Thumb Down

    im sorry.

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

    Oh ok then, off you go!

    Pish!

  27. Steen Hive
    Thumb Down

    @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?

  28. 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.

  29. Anonymous Coward
    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.

  30. dephormation.org.uk
    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.

  31. Anonymous Coward
    Thumb Down

    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?

  32. Tony
    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!

  33. Simon
    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...

  34. Liam
    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...

  35. Columbus
    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

  36. Anonymous Coward
    Thumb Down

    Implied Consent...

    I wonder If breathing was the requirement for implied consent ?

  37. Eponymous Cowherd

    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.

  38. Anonymous Coward
    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.

  39. Anonymous Coward
    Unhappy

    Plainly one of Jaqui's boys...

    ...has had a quiet word.

  40. Peter Thompson
    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."

  41. Mad as a Bat
    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?

  42. Jim Coleman
    Thumb Down

    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?

  43. bobbles31
    Thumb Down

    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.

  44. Eponymous Cowherd

    @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.

  45. Anonymous Coward
    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

  46. Anonymous Coward
    Anonymous Coward

    usual story

    "we're very busy you know"

    "what do you want us to do about it"

    (tm) the old bill

  47. Greg
    Thumb Down

    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??????

  48. Anonymous Coward
    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

  49. Jared Earle
    Flame

    Class Action

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

    Any lawyers fancy getting rich?

  50. Fluffykins Silver badge

    Alternatives?

    Request a Judicial Review (About £150)

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

  51. Dave

    That's odd...

    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.

  52. DR
    Thumb Down

    criminal intent

    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.

  53. Florence Stanfield
    Thumb Down

    Ignorance is no excuse

    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.

  54. Steve
    Thumb Down

    Another reason not to trust the police

    They don't work for us, we just pay them...

  55. Graham Wood

    "Lack of criminal intent"????

    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.

  56. radian
    Unhappy

    b*stards

    I can't think of anything else to add.

  57. Anonymous Coward
    Thumb Down

    manslaughter and murder

    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.

  58. Emperor Zarg
    Black Helicopters

    What else could they do with all that data?

    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.

  59. Dave

    @Gulfie

    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.

  60. The Other Steve
    Unhappy

    IANAL either...

    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.

  61. dek

    Obviously...

    ...it comes down to one group of people, that being BT customers, and if they can't be bothered at least moving to another ISP then why should the police be bothered. Still, I'm happy to have a convenient defence if any little "mishaps" occur in future!

  62. anonymous sms

    BT Frauds are Protected by the Regulators

    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.

  63. Anonymous Coward
    Thumb Down

    Well ...

    I hate to say I told you so! I just so knew this would be the outcome.

    Phuck them.

  64. Steve Browne
    Pirate

    Falling crime statistics

    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.

  65. Anonymous Coward
    Anonymous Coward

    Implied consent???

    This is ridiculous. No wonder nobody has any respect for the police or trust in justice nowadays.

    PC Plod is obviously an IT expert and legal matters rather than just enforcing the law.

    How can you give consent for something you have no idea is happening????

  66. Anonymous Coward
    Thumb Down

    No surprises there...

    Though the level of contempt that they are displaying towards us proles is reaching new heights these days...

    Can we count on the EC / EU to come to our aid? Doubtful... They'll spend a couple of million determining that there's no case to answer and that'll be that...

  67. Frumious Bandersnatch Silver badge
    Thumb Down

    s/implied/inferred/

    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.

  68. Adam Foxton
    Thumb Down

    @Ian Chard: Mens rea?

    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.

  69. Simon Ward
    Flame

    If the police won't pay ...

    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.

  70. Les Matthew

    Come on guys

    Are any of you surprised by this?

  71. Finko Bastawank
    Joke

    Implied Consent

    Implied consent ? Tcha, that didn't help me on that rape charge ..

  72. Anonymous Coward
    Black Helicopters

    Pig 4 Sale

    You can buy ANYTHING now days...

  73. Pierre Silver badge

    Lack of criminal intent?

    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...).

  74. Brian Morrison
    Black Helicopters

    Mens rea and intent

    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!

  75. OldDogNewWalk
    Coat

    They let me off once.

    I just got a warning instead of a speeding ticket. Perhaps this is the the same kind of thing and BT was just sort of speeding. There is not a LOT of difference is there?

    I think I'll just go home now.... Please.

  76. BlueGreen

    Will all the posters here stop rapping and do something, eventually?

    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).

  77. Anonymous Coward
    Anonymous Coward

    The eve of the war...

    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.

  78. BlueGreen

    And BTW criminal intent is required...

    ... 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.

  79. Anonymous Coward
    Anonymous Coward

    "If it pleases the court (or even if it doesn't)..."

    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.

  80. Dan Silver badge
    Flame

    What implied consent?

    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?

  81. Anonymous Coward
    Flame

    Here's your P45 DS Murray -- you're fired!

    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?

  82. Matthew
    Thumb Down

    Freudian Slip?

    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.

  83. Jethro
    Flame

    Not suprised . . .

    . . . 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.

  84. Sim
    Thumb Down

    criminal intent

    surely that is a matter for the courts to decide not the police?

  85. Phil Tanner

    Lack of criminal intent

    Surely that's the difference between "manslaughter" and "murder" - one is unintentional and the other isn't... But if I'm guilty of manslaughter I still go to court and get tried for it - so it's still a crime, no?

  86. Tom Thomson
    Flame

    Criminal Intent

    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.

  87. iamzippy
    Unhappy

    Evil Triumphs...

    ...when good men do nothing.

  88. kain preacher Silver badge

    So

    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.

  89. Anonymous Coward
    Black Helicopters

    BT / Phorm crims are child's play...

    ... compared to what the big boys get up to:

    http://www.newsnet7.com/view/611/a-few-wealthy-bankers-own-us-all-part-1/

    http://en.wikipedia.org/wiki/Operation_Northwoods

  90. Anonymous Coward
    Stop

    NO CRIMINAL INTENT?

    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.

  91. Anonymous Coward
    Black Helicopters

    The law is perfectly clear

    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?

  92. Stu
    Flame

    See if the MP will help...

    Well, I've sent an e-mail to my MP, pleading that he pushes for a Judicial Review. Have to wait and see what he says...

  93. Paul Gomme

    A call to arms - and make your names heard!

    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.

  94. fon

    It has nothing to do whith the PHYSICAL, so stop and THINK!!

    can those NUTTERS qouting this go and get some knowledge??? a lott may be seem to be 'allowed' but only 'cos no-one can see....

  95. Watashi

    Class Action Lawsuit

    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.

  96. anonymous sms

    BT thieved while soldiers died

    While the four BT call centres were using auto diallers to defraud the MOD kitty out of an estimated £11m, soldiers were dying in Iraq through lack of affordable equipment.

    criminal disgrace

  97. Anonymous Coward
    Paris Hilton

    WTF

    One Word.

    WHITEWASH.

    Paris, as he love the white (alledgedly)

  98. RW
    Unhappy

    FOI

    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?

  99. Andy Livingstone

    A sergeant?

    Had a word with a retired senior officer friend, who told me that cases are allocated to ranks based on the force's opinion of their severity or importance. Allocation to a sergeant said it all.

  100. Anonymous Coward
    Alert

    Belief in implied consent - yeah right... from WHO? Who anywhere???

    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.

  101. Anonymous Coward
    Heart

    hmmm

    There's a certain irony in a load of IT professionals who know fuck all about the intricacies of the legal system complaining that the police are dropping this case because they find IT crimes too difficult to get their heads around ....

    Hands up who's studied the laws allegedly broken? And who are legally qualified to comment on them? Hmm?

    Ok, now hands up now who's read about this story on the net and have now read a policeman's email, and have an outraged opinion to voice? Ah, right. For you guys, the stand selling the Daily Mail is over there.

  102. Anonymous Coward
    Alert

    Email your MEPs before Wed 24 September

    Do something about this before Wednesday 24 September. Two important amendments (133 and 138) to EU Telecoms package being voted on to prevent filtering and surveillance, and sanctions on users without judicial review. Email your MEPs asap, see details at link below:

    http://www.openrightsgroup.org/2008/09/20/to-do-this-weekend-ask-your-meps-to-vote-for-telecom-package-amendments-133-and-138/

  103. Frumious Bandersnatch Silver badge

    @hmmm

    Enter one "Anonymous Coward":

    Hands up who's studied the laws allegedly broken? And who are legally qualified to comment on them? Hmm?

    Enter Mr. Hanff:

    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.

    Any questions dimwatt?

  104. Angus
    Thumb Down

    the aim was to enhance their products." ?????

    Riiight...

    I would respectfully suggest it would be more accurate to say.. "the aim was to enhance their bottom line."

  105. Anonymous Coward
    Stop

    Perhaps it's worth complaining...

    Surely if enough people complain at http://www.cityoflondon.police.uk/CityPolice/Contact/MakeAComplaint/ they'll take the hint.

    Obviously the plod that made the announcement is sufficiently low down the food chain that he was just the messenger but it's ridiculous that if BT / Phorm have broken the law, the police should decide if they should be prosecuted.

    It could be that the CPS has been involved too in which case, they have to come clean and give their explanation.

    Just because some little useless police force doesn't have the smarts or the ability to handle a case like this doesn't mean that your local force can't.

    Surely the offence has not just been committed in their "manor" but everywhere. Might be worth complaining to local police forces.

  106. This post has been deleted by a moderator

  107. Anonymous Coward
    Thumb Down

    Hardly surprising

    What did my grandad say about coppers being thick? Two possibilities come to mind. Either the Met are too thick to understand the law or pressure was bought to bear from someone that meant the Met dropped it.

    I've said before that the government desperately wants this technology. How better to get their way than to get the police to play stupid and say "no crime was committed here"?

    In years to come when the state of Gordongrad has been imposed and those who haven't emigrated find themselves imprisoned, children will ask "Didn't you do anything to stop this?"

    How will you answer?

  108. Anonymous Coward
    Thumb Down

    wankers

    "its was too difficult to explain to customers what the trials were about"??? More like you would be digging your self in to a fucking big hole if you tried.

    And as for the City of London police, well they just getting more useless by the day. Time for Met integration I'd say.

  109. Irate BT User
    Thumb Down

    Erroneous Conclusions Lead to Strife!

    "Implied Consent" was a phrase used by a BT Exec, on many E-mails concerning Web site Owners?

    So who did the Police actually Speak to!

    And NO DS Murray "My information is MY Copyright" & it does not in anyway imply consent to trawl or use it for other purposes especially without "MY CONSENT"

    Since that Profiler was used on my connection in 2006 & 2007 & some other incidents, which I can relate rough dates to I will not "EVER" let this matter rest until BT Either admit publicly they got it wrong or they are taken to Court on the Issue!

  110. Chris
    Unhappy

    Nice to see someone's still keeping up with the story

    Though you're in for a long walk if you want to talk to some of the other few people who seem to be reporting this... http://news.google.co.uk/news?hl=en&ned=uk&q=phorm+bt+police&btnG=Search+News

    Hell, the Beeb can't even be arsed to put out a few lines about how this vidicates the goverment's "Why should we give a monkeys?" approach

  111. michael

    I am shocked

    shocked

    suprised

    astonded

    actuley i am not and that is what worries me the most

  112. Anonymous Coward
    Anonymous Coward

    Useless

    They won't investigate because the 'speed gun merchants' would have to get off their fat lazy arses and do so work. If they cannot solve a crime by pointing a speed gun at it they are not interested!

  113. Chris

    Oh my!

    How fucking predictable!

  114. Anonymous Coward
    Anonymous Coward

    Local police?

    Was the kit to do the intercepts installed at local exchanges? If so, surely a copy of the relevant conplaint can be sent by someone in each area it applied to, to the local force. After all, the offence occurred in their jurisdiction rather than the Mets.

    Maybe one of them might actually be uncorrupted enough to take it further? Especially if it mean putting a finger in the Met's eye....

  115. michael
    Flame

    going to get flames for this but

    "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?"

    if bt can suberdise the cost of a internet conenction by selling adds they the cost of the line can go down or at least stay the same and that "improves" the prodect

  116. Mark

    @Dave

    That argument is how the US government gets around their laws: they pay a private company to do it and then exercise their force in ensuring you can't sue the company for doing it.

    The government protecting BT is the government exercising its power to the cause against the public.

  117. Anonymous Coward
    Thumb Up

    Government?

    I'm not tin-foil-hatting here, but it's fairly obvious that the government are turning a blind eye to this, see how it all pans out. All the world's governments have seen the wonderful effect the Great Firewall of China has had and what government wouldn't want a snifter of the ability to snoop on ALL electronic communications? State of Denmark and all that guff.

    The only thing you can do is lobby your MEP for tomorrow's vote on EU Telecoms and then write hard copy letters to your MP expressing your dislike of the whole situation, in clear, non-technical English, Explain why this abomination of justice, should not be allowed.

  118. Jimmy

    With a little help from our friends.....

    Before this bitch-fest gets closed down can I just say a big 'Thank you' to Alexander Hanff for his persistence and diligence in trying to expose what is, despite Mr Plod's conclusions, one of the clearest examples of illegal covert surveillance you'll find in a lifetime. The issue of consent does not even arise since it was neither sought nor given, explicitly or implicitly.

    Given the government's determination to see surveillance technology installed in ISP server rooms, it's not hard to imagine that discreet high level 'conversations' took place during which favours were called in, promises made and if necessary, arms were twisted. DS Murray was just the last man standing when the music stopped.

    The wheels of justice grind slowly, and nowhere more slowly than in Brussels, so while we await the outcome of that process what can we do? If you are a BT customer apply for a MAC code and tell them explicitly why you are leaving. Tell friends and colleagues you have left BT and why. BT are determined to damage their brand image, so with a little help from their friends it will soon be 'mission accomplished'.

    Nulabour? Ah, what can you say. Mission accomplished already, no assistance required.

  119. Anonymous Coward
    Black Helicopters

    You scratch my back...

    And today Brown announces that BT will fund free broadband for poor (labour) voters. Hmm, purely coincidence of course.

  120. Anonymous Coward
    Paris Hilton

    Paris, because

    Even she doesn't give it up that easy...

  121. Mark

    The wrong PR

    The so-called police are great at swinging into action if it involves 'getting tough' on some NuLab PR idiocy or Janet Street Porter swears at her neighbour. But not apparently when a large company flouts the law - thats totally different of course. The message to the public is very reassuring; drop a fag butt and you'll have armed coppers desecrating your Koran but don't complain to us if some powerful kleptocrat gives you a rogering.

    Why do we pay for such utter morons?

  122. Anonymous Coward
    Anonymous Coward

    Well if that is not intent

    not sure what is.

    They intended to look at other people's communications illegally with the intention to profit by delivering advertisements profiled to the content.

    Not only that, they also breached copyright laws by maintaining an illegal copy of someone else's work, which they used to base their profiling off.

    Well looks like law and order has broken down in the UK - nothing new there is it. The thing is it is not that shocking it is just same old same old, UK citizens just accept this crap, like little poodles.

  123. Mr Chris

    Mens rea

    IAAL, and there have been some misunderstandings here about "mens rea".

    The "mens rea" for a crime is the intent to commit the act. You don't have to be thinking "oooh, I'm committing a crime" as well - you can form the necessary mens rea while still believing your act to be justified and legal. For example:

    The mens rea for theft is intending to permanently deprive someone of something.

    The mens rea for murder is intending to kill (or commit GBH, as it happens).

    The mens rea for an offence under RIPA is to intend to intercept communications.

    Bosh. There's no such thing as "criminal intent", just "intention to commit the act".

    I'm not surprised Plod misunderstood the law here - the police very rarely seem to understand any of the laws they're supposed to enforce. Anyone else see that article a while ago about a Times journo who got beaten up, phoned the police to tell them who it was and the copper on the other end of the phone cautioned him that he would be committing an offence under the DPA if he (the chap who'd been beaten up) told him (the copper) the guy's name and address. "FFS" doesn't even cover it.

  124. Charlie

    Re: That's a great decision

    Erm... yes? You can't be found guilty of theft if you didn't intend to permanently deprive the owner of their property. That's how it has been for many many years and would be pretty unfair otherwise.

    Speeding is a bad example; it's a strict liability offence, so there's no need to prove any intent.

    The BT/Phorm debacle is shocking, but it would seem even they have a better grasp of the law than you ;)

  125. John
    Unhappy

    Has anyone read RIPA?

    AC, above, mentioned the RIPA definition of unlawful interception, but neglected the important "and without lawful authority" part. Section 3 includes the definition of "Lawful interception without an interception warrant", and specifically para (3) states:

    "(3) Conduct consisting in the interception of a communication is authorised by this section if---

    (a) it is conducted by or on behalf of a person who provides a postal service or a telecommunication service; and

    (b) it takes place for purposes connected with the provision or operation of that service or with the enforcement, in relation to that service, of any enactment relating to the use of postal services or telecommunication services."

    I would suggest BT's lawyers would claim that "enhancements to the service" - which is what they will claim Phorm is - would fall under part (b), even though, to me, it has nothing to do with actually PROVISIONING or OPERATING (in the technical sense) the service.

    Such greyness can only be cleared up, in UK law, by a test case, but, unfortunately, such greyness also provides a perfect excuse for police - in this case - but also the DPP (see RIPA 1. (8)) - to "decide" the case needn't go forward.

    If you don't like it, *write* to your MP - that's snail mail write - they routinely ignore email and e-petitions because it takes very little effort, I kid you not.

  126. Werner McGoole
    Alert

    A possible explanation?

    It could be that BT pushed the anti-phishing line on our not-so-bright plod and persuaded him that they were on the side of justice and therefore that any incidental breach of the law was either non-intentional or worthy of being overlooked.

    I gather the police regularly have to do this. For example, security firms often encounter material like kiddie porn. Strictly, it's illegal for them to possess or view this, but the police don't prosecute them because the firms involved are on the same side as the police. To lock them up would be pretty counter-productive. Clearly the police have to use their discretion.

    So I can see that this might be a good line of defence if you were a BT executive being questioned by a junior plod. "We were trying to stop phishing against our customers, so we're really on your side, mate." If you read the police statement again with this in mind, I think you'll see how it sort of fits together.

    So maybe the police are not as corrupt as it might appear. Maybe they're just a lot stupider than the BT guys.

  127. Anonymous Coward
    Flame

    Yes I am utterly "sick of these bent politicians and police yet?"

    "sick of these bent politicians and police yet?" By Liam Posted Monday 22nd September 2008 15:28 GMT

    Yes, very. I have already purchased said mask and fully intend to take a walk in the pleasant autumn air. Date, time and venue already decided

    (The linked blog site is not for the timid) http://bastardoldholborn.blogspot.com/2008/07/old-holborn-is-going-for-walk.html

  128. JayB
    Flame

    To lose faith you have to have had it in the 1st place

    Dear fucking lord, are we so far removed from a proper form of govening that a simple DS can tell an entire country to fuck off???

    Face it folks, we are buggered. City of London Police just green lit every piece of spying, corporate treachery, govt sleeze and corruption going. Frankly I feel feel sorry the people in the vicinty of BT's Legal office as their eardrums shatter from the shrieks of laughter coming from the Lawyers.

    Is this a case of :-

    a) Police Corruption

    b) Police Incompetence

    c) Police apathy

    d) all of the above

    Posting neither anony-mouse-ly nor in any hope that emailing my MP & Complaints at CoL will get me anywhere, but I'm still going to do it if only to irrritate him and the City of London Police.

    PS Big Party round Phorm's Head Office.

    Phorm - Phucking the Populace under Police Protection

  129. Sir Runcible Spoon Silver badge
    Flame

    We assign your ip addresses

    we connect your ethernet cables

    you call us when you've infected your computer with malware

    do *not* fuck with us.

    I call shennigans on this whole sorry farce - a two day techie strike would show them that we are not without some power if we act as a unit. Who's up for a two day strike? And this time, if only six of us do it, I will leave this sorry-arsed apathetic fucking country to it's deserved fate.

  130. Alfazed
    Pirate

    They are in on it

    Obviously !

    What the hell do you think it is all about ?

    Pharming the humans, init !

    The pigs will be lining the trough alongside BT, et al.

    Durr.

  131. Anonymous Coward
    Happy

    Hanff - why don't you just get a real job?

    Oh boo hoo! What an awful crime!! Like child abuse or GBH!!!

    Gosh, you're a bunch of pathetic whiners. Why don't you get some sense of proportion?

    Yes, BT were stupid and acting in breach of the law by not informing their customers. What do you expect to happen – Ian Livingston being hauled before the judge in a criminal court?

    This is a sensible decision not to waste any more of the police’s time and taxpayers’ money on a pointless prosecution. Phorm will eventually be the norm – GET OVER IT!!

  132. Anonymous Coward
    Anonymous Coward

    Excellent news

    Excellent and now with Ofcom's backing we who aren't scared of our shadows, can look forward to faster cheap internet subsidised by phorm.

    No Luddite.

  133. This post has been deleted by its author

  134. Anonymous Coward
    Happy

    Why doesn't Alex Hanff get a real job?

    Oh boo hoo! What an awful crime!! Like child abuse or GBH!!!

    Gosh, you're a bunch of pathetic whiners. Why don't you get some sense of proportion?

    Yes, BT were stupid and acting in breach of the law by not informing their customers. But what did you expect to happen – Ian Livingston being hauled before the judge in a criminal court?

    This is a sensible decision not to waste any more of the police’s time and taxpayers’ money on a pointless prosecution. Phorm will eventually be the norm – GET OVER IT!!

  135. Anonymous Coward
    Alert

    RE I'm OK

    James, in spite of the hilarity of your comment ( oh, I'm holding my sides now they hurt so much from laughing) The provider of your telephone line does NOT come into it. It's the provider of your Internet ( that could be Nildram, or BT, or AOL etc etc)

    To be honest your ignorance and comment sums up the mass hysteria that Alex Hump has generated. You don't understand the issues.

    And to the guys who would deny free broadband to the poor - hey, have a little compassion fella do you want to pay for it?

  136. WonkoTheSane Silver badge
    Black Helicopters

    Re: Why doesn't Alex Hanff get a real job?

    Let's see now, 2 IDENTICAL anonymous posts 53 minutes apart...

    Just how long have you been a BT director?

    Black Helicopter - because that's who's REALLY paying for all this to go away!

  137. Anonymous Coward
    Paris Hilton

    Free and Poor?

    Eek i've just been made redundant - and hence will be poor soon - no thanks BT i'd rather use a modem, library, or college - their profiling will be useless there.

    Paris - cause the girls are cuter - libraries are full of grannies

  138. Acidbass

    AC@1550 has it nearly right

    I don't think this was ever about advertising, that's just the cover story. Describe it as 'the Home Office's latest system for intercepting communications within its borders' and it doesn't sound so bad, it's just the latest in a long line of schemes which we've been living with for years. Dress it up as an advertising trial being run by one of BT's 'trusted third party associates' and you can then run a plausibly deniable trial, complete with semantically devoid Home Office legal advice. If it gets rumbled you can let everyone vent steam about the evils of advertisers and move on to the system the *other* company was building for you with a different cover story.

    It all makes perfect sense really. Of course the home office, information comissioner, police, etc. are not going to investigate, they're the clients!

    The funniest aspect of all this is that the admirable Mr. Hanff has probably got a special branch operative listening in to all his phone calls, but the good news is that they won't bust his dealer because it'll show their hand.

  139. Anonymous Coward
    Anonymous Coward

    Martians.

    I'd really love to post a lengthy comment, but I need to make sure the Martians aren't stealing my trash.

    Sorry.. oh, and I need to finnish covering the walls of my house with aluminium foil to stop the bad people reading my pc, and reading my thoughts.

    PS I do know who killed JFK, I also know who's behind the Princess Di conspiracy, who stole the Lindberg baby,

    Strike. Euro MP, Local Police,

    Fucking grow up and stop whingeing...

  140. Bob. Hitchen

    BBC ignores invasion of privacy

    Guess what the government arse lickers have not mentioned this on their website. Why am I not surprised?

  141. Stewart Haywood
    Joke

    Manslaughter

    "One of the main reasons for this decision is the lack of Criminal Intent on behalf of BT and Phorm Inc in relation to the tests."

    So the crime of manslaughter no longer exists in London then? How very very strange.

    The icon is to represent the City of London Police.

  142. b
    Stop

    Re: Why doesn't Alex Hanff get a real job? @ Martians

    Kent you really need to sack this latest group of PR people....

  143. CTG
    Flame

    Implied vs Inferred

    DS Murray said there was "implied consent" when what he actually meant was "inferred consent". In other words, BT/Phorm _inferred_ that the users consented. The users were unaware of the trials at all, so were *unable* to give consent, explicit or implied.

    This is deliciously ironic given the police are the worst offenders in the misuse of "infer":

    Inspector Flint: Are you inferring that police are thick?

    Wilt: No, I'm implying it. You were inferring it.

    (Wilt, Tom Sharpe 1976)

    Try using "implied consent" as a defence against rape, and see how that works for you, DS Murray.

  144. Alexander Hanff
    Happy

    BBC ignores invasion of privacy

    I have a telephone interview with the BBC tomorrow.

    Alexander Hanff

  145. Bobby

    Question?

    Is hacking now allowed if we just say there's no 'criminal intent' or should we say it's 'implied consent' ?

  146. Anonymous Coward
    Stop

    Only Broadband?

    Well I find it hard to belive that this "intercepting" of internet traffic is confined to broadband... I imagine that it will apply to all internet traffic going through BT including Government Traffic not using broadband. Plua there is no indication that if you opt out that your traffic will not go through Phorm services. What is going to happen if I pay google to display adds on a webpage and then phorm posts there own adds over my ads or strip my adds out and replace then with others? What will they do to the page layout?

  147. Bobby
    Unhappy

    Corruption...

    You cannot control government corruption and evil will always prevail when there's two billion up for grabs in the next year or two.. A lot of people are going to get very rich serving up this misery on the ignorant public therefore there's nothing anyone can do apart from suffer and pay for their benefit...

    I would love to see one very brave police officer stand up and arrest these evil bastards and what a scandal would come to light thereafter with the numerous charges that would be made against 121 media ... One arrest, one charge and the whole spyware thing they've been plaguing us with for years will suddenly come spiralling down making the internet a better place for us all..

    Yes I do believe BT had some kind of implied consent to test/experiment to improve users connections but they most certainly had no right to pass users account data to known 3rd party spyware merchants that we all so despise...

  148. Sir Runcible Spoon Silver badge
    Heart

    Isn't it funny

    that the only pro-Phorm people posting on here are 'AC's :)

    You can spot the PR shite from a mile away because they ignore the facts and go straight for the slanderous denigration. Talk about projecting your insecurities...muppets.

  149. Chris
    Stop

    @ Why doesn't Alex Hanff get a real job?

    Pathetic whiners?

    Phorm will certainly NOT become the norm. I am cancelling my BT Broadband and moving to Be.

    Here's a suggestion for you mate; GTFO.

  150. Anonymous Coward
    Pirate

    FAO: Murray

    Tonight you're going to die in your bed, murdered as you sleep, but it's ok, because you're such a blithering turncoat with no respect for the law you supposedly uphold, you were asking for it, so it's ok, because you implied consent by your actions!

  151. Anonymous Coward
    Flame

    Re: james's "I'm ok" AC replier

    Kingston Comms are the ISP and phone line provider - there isn't the BT infrastructure here (or the need for it unless it turns into a "we want choice" cross post), so the Phorm hardware doesn't affect the KC users unless they're emailing someone who IS affected (For example).

    I'm off to start a revolt and take over Sealand, with a chuffing great cable going to someone elses exchange where my privicy CHOICE isn't removed by greedy 'tards and their lapdog police.

  152. NT
    Dead Vulture

    What did we really expect?

    Phorm have money. BT have lots of money. Money equals law.

    You can forget the European Commission, too: money works just as well in the rest of Europe as it does here.

    We wanted a free market. Looks like we've got what we wanted.

    Hoorah.

    *sigh*

  153. VulcanV5
    IT Angle

    Blaming the police is unfair.

    The root of the problem has nothing to do with BT, Phorm, or Home Office pressure on the police.

    Rather, it's about the failure of this Government to provide every police officer with his own home computer.

    Instead of doling out squillions of IT equipment to feral brats and their families, Brown could instead -- and should instead -- have ensured that every police officer in the UK is able to go on the Internet and Google for "Phorm, BT, criminality, death of democracy, who the hell is this woman called Jacqui Somebody or Other anyway?" And suchlike.

    The City of London Police are clearly the most disadvantaged group in the country. Blaming them for a failure to understand, well, anything at all is outrageous: they are only able to investigate someone who's got form, so misspelling the word in any complaint to them was bound to lead precisely. . . nowhere.

    *On a side note: good luck, Alexander. You've worked hard and long and yes, your efforts have been, and are, appreciated.

    If not by the City of London police.

  154. Irate BT User

    Blaming the Police when you think they are wrong IS Fair!

    @VulcanV5

    Blaming the Police when you think they are wrong IS Fair!

    BUT SO IS PRAISING THE POLICE WHEN THEY GET IT RIGHT, which is not done enough!

    Don't rise to the Pro Phorm PR baiting, it only serves to cloud the debate, & so does blaming others who are less fortunate than you, for this situation!

    Concentrate on the Right Target & the Right Issues!

  155. Anonymous Coward
    Unhappy

    What else would you expect?

    It's just another version of the usual refusal by lazy coppers who can't be bothered to think about what's happened or to take action against a big company.

    Their normal excuse is, "It's a civil matter, sir!" - even when it plainly isn't.

  156. Jason Smith
    Joke

    Er, anyone for extra irony? ICO tells people to protect their online privacy

    Apparently:

    "Laws to protect privacy are not being used enough, the Information Commissioner's Office (ICO) says. "

    http://news.bbc.co.uk/1/hi/uk/7632740.stm

    Laugh? I nearly sh*t me'sel'

    I hereby pledge a minimum of a tenner to the judicial review fund - anyone else interested?

  157. Anonymous Coward
    Thumb Down

    Internet Division starts here then

    well time has come we i.e. Techies for as much power as we have over kit need to block entire IP ranges to which ever ISP that supports phorm. This way although their clients are online regardless of wether they agree to opt in or out will get less and less of web to surf (as long as techies block out the providers)

    This will mean they have no choice but to find a provider that does not support phorm

    As far as the police gov etc

    Do you not know by now you live in 2 layered society if a high member of society ie politician or a big company paying politicians does something wrong nothing happens maybe someone steps down

    If we the public who pay all of them the money to be there in the first place do something wrong well you can bet you will be getting put in some jail for it.

    the police have shown their true colours they are the the bullies representing this gov, they are not here for the public. They are here to make figures up to show politicians how good they are for another medal

    here mutley here is another medal

    yeh yeh yeh

  158. dave
    Thumb Down

    insane donut eating lazy and incompetent cops

    Have the police lost their mind? What the heck is going on with this country?

    Lets all intercept the governments communications and then we cant be prosecuted since no illegal intent was intended. Child pornography is now legal since they did not mean to do anything illegal. All they wanted to do was watch little girls. I was sure that they were going to charge BT at least with some offenses but to completely give them a clean slate is beyond me.

    Where can i donate money to a legal fund as this has gone to far and i want to help the cause with the only way i can at the moment. THis really infuriates me! I am in a bitter dispute with BT right now with them disputing that i even called to cancel the account before it became active even though i am quoting the very time, place, telephone number and fake, made up, reference number i was given by a supervisor in India. I dont trust BT as far as i can throw them.

  159. Anonymous Coward
    Go

    @dave

    "Where can i donate money to a legal fund as this has gone to far and i want to help the cause with the only way i can at the moment. "

    its not the only thing you can do , dont rely on others to do it for you.

    you are perfectly able to start your own WEEKEND anti-DPI demo and orginise with your local people for instance.

    if you were a BT customer at the time of the unlawful acts ,you can take BT to county court and claim your pound of flesh and peck them to death alongside the other mass BT customers that were involved but only if YOU personally chose to make the effort and write the papers.

  160. Anonymous Coward
    Anonymous Coward

    Home Office are running this one

    I guarantee you, the Home Office is running the show here.

    Because of the legal uncertainty surrounding what Phorm and BT wanted to do, that's why they went to the Home Office and sought advice. The Home Office gave their advice, which they claim wasn't a definitive, "yes it's legal" black or white statement, but whatever advice they gave BT/Phorm, BT and phorm took it into consideration and went ahead with the trials, so obviously, the advice from the Home Office, was favourable.

    Now, the whole thing is turning to rat-shit, the Home Office doesn't want it's advice being made public, it doesn't want the legality question to be brought up and investigated, that will be hugely embarassing, so the Home Office is going to do everything it can to not let this issue progress further. It's going to stone wall as much as it can.

    The Home Office is going to do everything it can to ensure that no government agency/organisation does anything to progress any questions on the legality.

    The Police won't get involved, ( probably because they've been instructed by their bosses, the Home Office) not to, and I will bet you, eventually the Information Commissioner will back-out and refuse to progress the legality question.

    The only way the legality question is going to advance, is if a fighting fund is put together, and barristers are hired, a campaign group formed ( in the same way the Professional Contractors Group came into existence) and the government, BT and Phorm are taken head on.

  161. Steve Swann
    Black Helicopters

    A wake up call...

    Glancing back over the history of law-enforcement, it becomes apparent that there is indeed a course of action that can be taken. When the law fails the people, the people take ownership of the law. Sometimes its called vigilantism, but I prefer to call it justice.

    Now, I am not advocating that we storm BT and burn their server racks, but I think we should take a leaf out of Mark Thomas’ parliament square protests (If you’re not aware of this campaign against the erosion of our civil rights, then you should take a close look right away, this Phorm thing is only another maifestation of the same issues).

    As you may be aware, it is illegal to hold a protest in Parliament Square (and a good square mile around parliament) without consent of the local police. You can obtain the form from the police. So, mr Thomas, instead of rounding up lots of people and performing ONE protest, rounded up lots of people and got them to put in SEPERATE requests, all for the same day and time. He does this every wednesday now, I believe…. …you can imagine the pain this causes the authorities. Sooner or later they will HAVE to review it, especially as the movement grows…

    I say we do the same thing with Phorm.

    Don’t bother with the class actions… EVERYONE put in a complaint to their local police… spread the word, get your friends and families involved… make this an issue that they CANNOT ignore… and when they try to make ANOTHER complaint….

    Sooner or later, they will have to act.

    Justice belongs to the People, not to the corporations or their government lapdogs!

This topic is closed for new posts.

Biting the hand that feeds IT © 1998–2019