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.