Quote:
Originally Posted by oblonsky
Indeed but the law tends to deal more often than not on tangible concepts rather than minutiae of transmission mechanisms. It’s a contentious point but the majority of experienced lawyers I have talked to regarding Phorm tend to say that for published content then RIPA specifically does not require the consent of the remote (website) party because the communication is that of published content and not of private communications. It is similar to the difference between sending a magazine or video by Royal Mail parcel service against sending a letter by letter post, and I am assured that RIPA applies differently in these two cases.
However as we all know, a lot of web content is interactive, and as another very good and experienced friend explained to me it will be very difficult for an automated process to distinguish between e.g. a Facebook style private messaging thread and published content because of all the bespoke authentication methods out there.
So it seems the only way content owners can fight against intra-ISP spyware/profiling is under copyright legislation and that is doomed to certain failure because Phorm insist that they will respect robots.txt, an established mechanism granting a machine the rights to scan and classify the content.
IANAL (but I know a few very good ones).
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I know some very good ones too and have come to know even more since the scandal started. There is nothing in RIPA which supports your comment on web sites and published data, so I am not sure who told you that but it simply isn't true. RIPA states public telecommunications network with regards to which types of networks apply (as opposed to private which you seem to be saying in your post) but then extends itself to private networks (such as business networks) which has already seen a conviction in the UK and a failed appeal.
Furthermore, Phorm do not state they will abide by robots.txt at all, they have stated if Google appear in a robots.txt with permission to access, they will assume the same right. In fact they have gone even further and refused to issue a user-agent so that robots.txt configurations can choose to allow or deny Phorm access.
Now with respect, the -law- states consent is required and that it must be informed consent from -all- parties, it is very clear and freely available in black and white to anyone who would care to read it. You seem to be missing a few laws as well such as Fraud Act 2006, Privacy and Electronic Communications (EC Directive) Regulations 2003, Torts (Inteference with Goods) Act, Data Protection Act (which irrespective of what Phorm or ICO may have said, very clearly defines any
operation on data (which includes anonymising it) even if it is by an automated system must first have the consent of the subscriber. Lets not forget the Computer Misuse Act either. Again, all of the above are freely available for anyone to read.
So I am afraid I don't agree with your analysis or that of your legal experts.
Alexander Hanff