Quote:
Originally Posted by rryles
I believe it should be classed as an interception. However I'm not sure that a court would class it as such under RIPA. Baroness Miller said, "They intercepted people's communications without their consent. That can't be any more legal than someone slitting open a letter addressed to me and reading the contents." I agree with the sentiment, but I think there is potentially an important difference between phorm and someone opening letters. Phorm uses machines, not people, to read your communications. If phorm can demonstrate that no part of the communication is made available to a person, then it is not an interception under RIPA. The Baroness also said, "If the trials were not illegal, which they should be, it is because the law hasn't kept pace with technology". I agree unreservedly with that statement.
Note: I am not legally trained and this is only my opinion. I am in no way endorsing any of phorms past or planned activities.
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It makes no difference whether the machine or a human being performs the interception. The key fact is that personal communications are being "made available" to a third party.
Consider this argument, which I hope will stand up in court.
A person has a job they want doing - classifying users according to the content of the web pages browsed, so that they can sell targeted adverts.
The result is achieved. The content of web pages MUST have been available for this person to achieve this result.
To my mind it makes no difference whether this person who wants the job doing works for BT or Phorm, BT have no right to intercept your communications just because they happen to be your ISP just as the Royal Mail can't offer a targeted ads service based on a postmaster opening your mail.
The only time a postmaster could legally open your mail is for miss-addressed items. At this point the result the postmaster wants to achieve is routing the communication (or returning it to sender), so the contents are not being "made available" to anyone else.
And it makes no difference that this person employs a machine to achieve the result he wants. The key is that someone wants to do something with your communication that goes beyond routing it to it's destination.
There is one way BT can clear this whole mess up definitively: submit to a test case in the high court to get a ruling on whether intra-ISP profiling constitutes interception as defined by RIP.
If BT are sure it is legal, then this is an opportunity for them to shut the protestors up and severely limit any future risks from legal action.