OK I received an email back from Nicholas Bohm regarding my legal analysis of the 2006/2007 covert trials. I am deeply appreciative that he took the time and effort to read it and provide some very constructive and positive feedback which should improve the paper. I won't post the entire email but I will now quote a couple of points he made which are relevant to the debate:
Quote:
I thought your discussions on trespass to goods and copyright
infringement were most interesting, not least because neither had
occurred to me as topics to address.
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I found this particularly useful because they are points he never addressed in his own analysis so it clears up some of the differences between the two documents.
Quote:
Lastly, in your email you raised the question of the user's complicity.
This can only refer to future uses of Phorm, of course, rather than to
secret trials.
A user who knows what is involved in the use of the technology, and who
opts in with the knowledge that he uses (for example) webmail which will
not be excluded from analysis, can be argued to incite interception, and
perhaps conspire to have it done. This is no defence for an ISP, or for
Phorm as a fellow inciter. And it seems to me that even if a prosecutor
could be persuaded to prosecute BT, which seems an uphill task, there
really is not the remotest chance that a user would be prosecuted.
You may say that users should nevertheless not be put at risk of
prosecution, even a little theoretically, and I would not disagree. But
I would not place this aspect too far up the list of concerns.
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This is an important point although not directly related to the 2006/2007 covert trials, because it qualifies my concerns regarding putting users at risk of being complicit, despite it being unlikely that a user would be prosecuted.
Alexander Hanff