p2pnet news view Advertising | Freedom | P2P:- It’s been a month since Phorm adversary Alex Hanff made an official criminal complaint to the City of London Police in England.

Hanff is on the right, pictured with Phorm boss Kent Ertegrul during a TV debate.

Phorm ran secret “trials” in the US, it was recently revealed, but Hanff was citing other experiments centering on Phorm’s (then 121Media) covert behavioural advertising technology called Webwise (previously called PageSense/ProxySense).

“I have received a lot of communications from the public and the press asking for updates on the case so yesterday I phoned City of London Police at Wood Street for an update,” Hanff posts on No DPI, going on »»»

I was a little suprised to discover that the department I was told the complaint would be handed to (Specialist Crime Unit) does not exist and that they had no idea where the complaint was. After about an hour I received a call back from a Chief Inspector explaining that they had located the complaint and proceeded to give the details as outlined below:

Crime Reference Number: 5253/08

Officer in Charge: Detective Sergeant Barry Murray, Snowhill CID

I also received his contact number and so decided to phone for an update. DS Murray was hostile from the onset and claimed that the covert trials had not violated Regulation of Investigatory Powers Act 2000 and when I asked him to explain why he believed that to be true he refused to answer and became even more hostile before eventually hanging up the phone. An audio recording of the conversation is available below:

First phone call with DS Murray

So given that voice communications had broken down I decided to email DS Murray, the contents of which can be found below:

Detective Sergeant Murray,

First let me say I am very disappointed that our phone call broke down in the way that it did; I would urge you to consider that if you wish to be treated with respect you need to afford that same respect to others.

Now on to the case in hand.

I made it very clear in my complaint where RIPA had been violated as well as the other criminal breaches of law which the covert BT Trials of Phorm’s technology in 2006 were responsible for. I can only assume that you have not received the entire case file and thus urge you to let me know exactly what you have in your possession.

I should remind you that the Home Office have stated that in order for interception of communications to be lawful under RIPA they must have the consent of all parties; failure to obtain that consent is a criminal offence under Section 1 of the Act as outlined below:

Regulation of Investigatory Powers Act 2000 (RIPA)

Section 1 of the Act makes it a criminal offence “for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of it’s transmission” and subsection 1b specifies a public telecommunications system as falling under the jurisdiction of the Act.

Section 3 of the Act outlines exemptions to the requirements which do not require the use of a warrant. None of the exemptions listed in Section 3 of the Act include interception for the purpose of trialling commercial behavioural profiling and advertising technologies. Therefore under RIPA consent would be required in order for interception to be lawful, in the absence of consent, interception is a criminal offence.

On page 13 of “PageSense External Technical Validation” subsection 3.2.3 (Observations and Exhibits) paragraphs 3 states that “web-page tag insertion” took place. Page 15 subsection 3.2.3.3 (Javascript Execution Prompting) the report refers to the use of Javascript which was inserted into the communication by the PageSense system and finally page 16 clearly acknowledges in subsection 3.2.3.4 (Web-Page Source Javascript Tag) that every single page a user viewed had JavaScript software inserted into the communication by the PageSense system.

The above are all clear examples interception and modification of communications, a criminal offence under RIPA in the absence of informed consent. It is impossible to insert JavaScript software into a communication without first intercepting that communication en route between the end user and the web page server.

Page 14 paragraph 1 illustrates BT’s knowledge that users would have to be informed before PageSense could be deployed, this is an acknowledgement that consent is required.

Therefore based on the above evidence it would seem that BT Group PLC and Phorm Inc. inarguably violated the requirements of RIPA and furthermore, these violations constitute a criminal offence under RIPA and both parties should be fully investigated by City of London Police for the purpose of prosecution under the Act.

It should be noted that the page between page 44 and page 46 of “PageSense External Technical Validation” (page is not numbered) we see evidence of the number of interceptions which occurred throughout the covert 2006 trials as a table of data. Row 3 of the data appears to be the number of web pages which were intercepted per day and when summed together a total of more than 18 million web pages were intercepted over an 8 day period; this illustrates a total in excess of 18 million criminal breaches of RIPA Section 1.

This view is shared by Baroness Miller and the Earl of Northesk both peers in the House of Lords; furthermore Nicholas Bohm (reputable legal counsel for Foundation for Information Policy Research FIPR – a respected privacy think tank) believes that the trials illustrate a violation of RIPA.

So as I tried to ask you on the phone, please explain why you feel this case does not fall under RIPA.

Furthermore, my complaint also illustrated criminal violations of Computer Misuse Act and s107 of Copyright, Designs and Patent Act (covering criminal copyright violations). Please explain whether or not these other 2 Acts of Parliament are being included in the investigation and if not please explain why.

I am very disappointed at the inaction of yourself and your department on this complaint especially given the attention this issue has received from people a long way above your pay grade (such as European Commission, House of Lords, Home Office and even one of your own Chief Inspectors) so I should make it clear that if this attitude from you continues I will be making an official complaint to the IPCC and asking my contacts in the House of Lords to ask official question of the Home Office as to the lack of co-operation from the Police or action on the complaint handed to the Police on this matter.

Sincerely,

Alexander Hanff
Copies Retained

I received a read receipt for the email 1:05pm but to date have received no reply.

Today I phoned again for an update and it seemed apparant that DS Murray had not read my emails because after I asked him for a response to my questions he asked me to repeat them because he couldn’t remember. So I asked him why he felt BT’s covert trials had not violated RIPA 2000 and also asked about Computer Misuse Act and Copyright, Designs and Patents Act.

His response beggars belief. It seems the police do not understand the very laws they are supposed to enforce as in response DS Murray claimed that only public authorities are covered by RIPA and as BT are a company RIPA does not apply to them. I endeavoured to explain to him that actually RIPA does cover private individuals and companies but it was clear my efforts were pointless as he clearly wasn’t interested in anything I was saying. So I politely ended the call after explaining I would be publishing the audio (which he was perfectly happy for me to do); the audio from this second call can be found below:

Second phone call with DS Murray

Now obviously, this is very embarrassing for the City of London Police and presumably for DS Murray so in a final effort to allow them to save face, I once again emailed DS Murray explaining why the trials violated RIPA as well as reminding him of case law where a conviction has been obtained under RIPA which involved private individuals and companies. I also included a link to the Home Office statement claiming in order for companies to comply with RIPA they must obtain informed consent from all parties involved in a communication. The contents of that email can be seen below:

DS Murray,

Regarding our phone conversation earlier this afternoon; I really feel obliged to give you one final opportunity to re-clarify your opinion. I should warn you that if I publish your current opinion it is likely to bring the CoL Police into disrepute, will cause a public scandal and is likely to effect your career.

Your opinion that RIPA 2000 only applies to public authorities is actually incorrect; indeed the legislation itself covers penalties for private companies and individuals within the Act and furthermore, a case has already been presented to the courts regarding activities at Demon Internet a few years ago and a conviction was the result (a conviction which was upheld at the appeals court).

Also, the Home Office released a statement earlier this year categorically stating that in order for interception to be lawful without a warrant, full consent must be obtained. This statement was in direct response to questions regarding Phorm and can be found by following the link below:

http://cryptome.org/ho-phorm.htm

I really am trying to do the decent thing here and prevent significant embrassment to yourself and your constabulary so I would urge you to contact your superiors on this issue and reverse your statement to me this afternoon no later than 5pm today. Failure to do this will result in me publishing a press release and the audio from both of our calls.

As a closing remark I would like to say how shocked I am personally that the people who are supposed to be enforcing the law have absolutely no comprehension of the law.

Sincerely,

Alexander Hanff

So there we have it, DS Murray failed to respond by 5pm and this article is the result. I will allow you all to form your own opinions on the issue of the police not understanding RIPA; personally I think it just illustrates even further the complete lack of interest or understanding of these privacy issues by public authorities, despite the significant press this issue has generated and the recent intervention of the European Commission.

I hope that this article will encourage CoL Police enough to finally start taking the issue seriously and proceed with criminal charges against BT Group PLC and Phorm Inc. for their criminal actions during the 2006 trials of Phorm’s advertising technology. Perhaps it will have a knock on effect of forcing the police to take such complaints more seriously in the future.

Stay tuned.

. .Stumble It!

Phorm adversary Alex Hanff – Phorm and DPI: Alex Hanff, May 20, 2008
secret “trials” in the US – DPI firm Phorm had secret US op: report, August 14, 2008
No DPI – City of London CID fail to comprehend the laws they are supposed to enforce, August 15, 2008

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This entry was posted on Friday, August 15th, 2008 at 11:55 am and is filed under Advertising, Freedom, P2P. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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