[Barkotron]

I'd say they're on dodgy ground if they try to use that: "data volume and/or types of traffic transmitted" does not equate to reading the full content of every single webpage viewed by a user.

To me, the most telling thing is that BT (and, I think, Virgin, although I can't find the statement right now) have already said that they would have to change their T&C in order to comply with the law. If they have to change this, then that says to me that their current ones are not enough. As far as I can see, BT have committed a clear criminal breach of RIPA, and have not provided any clear reasons why they believe this not to be the case. Just stating "we don't think it's illegal" over and over is not good enough - they need to point out exactly where in the provisions of the RIPA they think covers their actions.


Just to recap the RIPA thing as far as I see it:

There are a few things which are clear, taking into account all of the advice we've seen from the Home Office, FIPR and others:

1. The Phorm system does legally constitute an interception under RIPA. There are no dissenting legal opinions to this that I've seen.
2. This interception is not necessary to provide the contracted service of providing an internet connection, so the ISPs cannot claim immunity under RIPA due to necessity. I haven't seen anyone arguing against this either.
3. That being the case, in order for the ISPs to legally implement this system, they require "explicit consent" from both the customers and the website owners. Even the Home Office advice makes the point that consent from both parties is absolutely required under the act.


As far as I see it, the above 3 points are not in dispute (although if anyone thinks otherwise, please reply pointing out where I've gone wrong). The only argument is around what exactly constitutes "explicit consent". I can see that a properly worded set of Terms and Conditions would provide this on behalf of the customer (although note that in my opinion, and inferring from their actions, also BT's opinion, their current Terms and Conditions do not give sufficient consent under the law). So the question remains whether this concept of "implied consent" for webpages is worth anything or not. Personally, I don't think the Act allows you to assume consent - BT/Phorm obviously feel differently.

Even if you can assume a general consent, I think BT/Phorm would have a very hard time in court when coming up against some of the Terms of Service for many websites (Amazon and the BBC site have been mentioned), which would appear to explicity deny the right for third parties to use their content for commercial exploitation without further agreement: I can't see that they can argue that an assumed implied consent can trump an explicit statement denying that consent on the part of website owners.

I'd be very interested to hear a detailed explanation of how they expect to be able to comply with the RIPA given all of the above. Unfortunately we don't hear any detail, just blanket statements of "we disagree". I think they need to do a lot better than this in public statements, as all the PR is doing is winding people up, and they definitely would need to do a lot better than this in court.