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25 September, 2008

Phorm win this round

The City of London Police have decided not to proceed in prosecuting BT for their covert trial of the privacy-invading Phorm traffic-tracking software.
Fair enough; the relevant authorities carefully studied the evidence then concluded that there was no case to answer.
Well, no; their reasoning is appalling.

Firstly, they say that the trial was legal because "there was no criminal intent on behalf of BT". Intent isn't a definitive test of legality. Drunk drivers don't actively intend to cause injury or death, but their knowing irresponsibility is more than enough for prosecution.

Secondly, the trial was legal because, they allege using very flawed logic, there was implied consent, "because the service was going to benefit customers". That's a very dangerous argument – it's bad enough when state agencies make impositions 'for your own good', but private companies simply cannot assume consent. It's for the individual customer to decide whether there's a potential benefit, and to decide whether that 'benefit' is worth the cost. Consent has to be explicit, not implied.

A judicial review of the police investigation is being sought. This isn't 'sour grapes', a refusal to accept the unwelcome outcome of a valid inquiry: the investigation itself plainly relied on flawed premises.
The EU's investigation of Phorm and the entire class of tracking/ad-targeting software is also proceeding; let's hope Europe-wide legislation overrides the City of London Police's inadequacy.


Pathetic, BT should have been given a severe beating for what they did. But fingers crossed that the EU does given them a stern rebuke.

Posted by Jae at September 25, 2008 03:19 PM

point 1/ actually, legally: "mens rea" IS a critical element for most *criminal* offences. (note that the distinction between murder and manslaughter is mens rea) but more importantly: it is a factor, but only a factor --not critical-- for most civil offences. that is, it influences the severity of the offence, rather than determining the offence.

point 2/ oh dear lord this got me angry. this is just pure fantasy. silence by consent is an extremely sensitive area in law, and is virtually always marked DOWN, not up. its bounds are VERY well known and VERY limited. to pretend that signing up for a service with strict legal bounds and social expectations actually implies unlimited licence to reuse personal information is so far outside the common law it's not funny.
at the most basic, such signing-up, by the common-law, imposes a fiduciary duty upon the signee, not an implied licence. "fiduuciary duty", there, is a phrase implying profound obligations, not the other way about.

Posted by Saltation at September 26, 2008 10:28 PM
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