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[rryles]

Originally Posted by AlexanderHanff

Actually you are not entirely correct on this issue. The legislations which are relevant to this make it very clear that it doesn't matter whether it is a person or a piece of automated equipment carrying out the interception - without consent it is a criminal offence.

Alexander Hanff

True - an interception can be carried out by an automated system - however, as I understand it, it is only classed as an interception if the contents are made available to human being.

That still leaves uncertainty as to what counts as making available and what counts as "some or all of the contents of the communication".

[AlexanderHanff]

Originally Posted by rryles

True - an interception can be carried out by an automated system - however, as I understand it, it is only classed as an interception if the contents are made available to human being.

That still leaves uncertainty as to what counts as making available and what counts as "some or all of the contents of the communication".

No there is no such clause in -any- of the legislation which even hints at this let alone makes it a requirement.

Alexander Hanff

[Tharrick]

Thanks for that, but the above ZDnet article was more forth coming .. 15 protesters. I rest my case (well, probably not ).

Not to mention the 958 independantly verified anti-phorm answers to the poll on this thread alone, and the 15642 signatures on the petition at http://petitions.pm.gov.uk/ispphorm/ calling for the relevant authorities to investigate the issue

[D_Advocate]

Originally Posted by AlexanderHanff

They are just a few of the people who state the trials were illegal.

More 'they said' !

It will be up to a Court of Law to prove the illegality of the case, not those who 'state' that it is illegal ... that's if it ever gets to court, which is very unlikely.

D_A

[rryles]

Originally Posted by AlexanderHanff

No there is no such clause in -any- of the legislation which even hints at this let alone makes it a requirement.

Alexander Hanff

RIPA 2000 Part 1, Chapter 1, Section 2, Paragraph 2:

(2) For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he—

(a) so modifies or interferes with the system, or its operation,

(b) so monitors transmissions made by means of the system, or

(c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,

as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.

[Raistlin]

Worth noting that, in intercepting the communication and sending it to the Phorm servers, they are making it available to the Administrators of those servers (who would presumably be neither the originating sender, or the intended recipient of the original transmission).

Just a thought

[oblonsky]

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.

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.

[AlexanderHanff]

Originally Posted by rryles

RIPA 2000 Part 1, Chapter 1, Section 2, Paragraph 2:

The data is made available to potentially an unlimited number of people as it is made available to Phorm and OIX partners, I would suggest you read the notes that go with the Act too rather than just the Act itself. As for the Computer Misuse Act it very clearly states whether it is a person or automated system responsible for the violation (and even if I remember correctly any party who provides any equipment which is used to commit a breach of the Act).

Alexander Hanff

[D_Advocate]

Originally Posted by Tharrick

Not to mention the 958 independantly verified anti-phorm answers to the poll on this thread alone,

Who truly represent the majority of UK broadband users ? Methinks not.

and the 15642 signatures on the petition at http://petitions.pm.gov.uk/ispphorm/ calling for the relevant authorities to investigate the issue

Yeah .. people love petitions - they are so easy, but mostly ineffective and subject to abuse by those with many throw-away email addresses. Just look at many other petitions on there ... nuff said.

D_A

[Rchivist]

Originally Posted by D_Advocate

More 'they said' !

It will be up to a Court of Law to prove the illegality of the case, not those who 'state' that it is illegal ... that's if it ever gets to court, which is very unlikely.

D_A

D_Advocate - you know and I know that a certain person under another name, and I (under my own name in both places), have rehearsed all these arguments over in the BT internal newsgroups. I already know the arguments that a certain person used there and this is looking very familiar. I have an idea how long the argument will take and how unproductive it is likely to be. Would it help if I just print that certain person's replies from there, over here, all in one go to save time? I've got the archive and I promise to remove personally identifiable information in case that person objected.

At the moment we are on the argument where no one is allowed to say that anything is illegal because only a court can say that it is illegal. Let's take that as read shall we and move on. It is beginning to feel a little like baiting, which is not a recommended activity here.

[rryles]

Originally Posted by Rob M

Worth noting that, in intercepting the communication and sending it to the Phorm servers, they are making it available to the Administrators of those servers (who would presumably be neither the originating sender, or the intended recipient of the original transmission).

Just a thought

I'm certainly convinced by that argument. Unfortunately, it is only the opinion of a court that really counts. (Well maybe the majority of consumers who will leave there ISP if it adopts phorm count too )

[Raistlin]

Originally Posted by R Jones

[...]Would it help if I just print that certain person's replies from there, over here, all in one go to save time?[...]

I'd really rather you didn't

Originally Posted by R Jones

[...]At the moment we are on the argument where no one is allowed to say that anything is illegal because only a court can say that it is illegal. Let's take that as read shall we and move on. It is beginning to feel a little like baiting, which is not a recommended activity here.

Sound advice indeed

[rryles]

Originally Posted by AlexanderHanff

The data is made available to potentially an unlimited number of people as it is made available to Phorm and OIX partners, I would suggest you read the notes that go with the Act too rather than just the Act itself. As for the Computer Misuse Act it very clearly states whether it is a person or automated system responsible for the violation (and even if I remember correctly any party who provides any equipment which is used to commit a breach of the Act).

Alexander Hanff

I believe it is made available to several people too. However I'm trying to see how phorm might argue that it isn't an interception. I will have a look at the notes as you suggest.

I'm only looking at the RIPA perspective at the moment. I know that's only 1 of half a dozen.

[Tharrick]

Originally Posted by D_Advocate

Who truly represent the majority of UK broadband users ? Methinks not.

It represents the view of a portion of the UK broadband users who are savvy enough to realise that this is a system that's open to abuse, and who are willing to do the research on such matters and find conflicts with the letter of the law. Especially when also compared to other polls on other websites such as the one on ISPreview (http://www.ispreview.co.uk/cgi-bin/p...?archive_id=60)
To disregard it simply because it's based on the opinion of the technosavvy would be like (dipping into my own area of expertise here) disregarding the dangers of E. coli gaining pYV simply because it only concerns microbiologists and doctors.
For those of you who don't know, pYV is the genetic element that gives the bacteria that causes plague its ability to infect people.

Yeah .. people love petitions - they are so easy, but mostly ineffective and subject to abuse by those with many throw-away email addresses. Just look at many other petitions on there ... nuff said.

D_A

The key thing about this site is that as each online signature is linked to a UK address, it's entirely possible to confirm the signatures by checking against the voting registers. The data is verifiable, even if it has yet to be verified. Another thing to remember would be the number of people who have written repeatedly to assorted figures of authority (transcripts of letters and other communications are lurking in the many pages of this thread). I myself have written many letters, but did not attend the protest due to financial issues (having graduated from my BSc course today and being hit in the face with the full realisation of the student debt, coupled with current unemployment), health issues (I don't recall who it was, but I recall one of our posters pointing out that they had a hospital appointment that could not be postphoned on the day of the protest) and other issues.

[oblonsky]

Originally Posted by R Jones

At the moment we are on the argument where no one is allowed to say that anything is illegal because only a court can say that it is illegal. Let's take that as read shall we and move on. It is beginning to feel a little like baiting, which is not a recommended activity here.

But we can, with one clear voice, call on BT to submit to a test case to get a ruling either way.

The idea of a test case was raised in the House of Lords by Lord West of Spithead in response to a question from Baroness Miller, see here:

http://www.badphorm.co.uk/e107_plugi...topic.php?7402