Spam in my inbox is distinguished from legitimate mail by 'consent'. I have expressed my consent to various services to receive their email correspondance, such as newsletters. I'm even grateful to some services to receive news of their 'special offers' and pleased when I receive an email telling me that something that I was thinking of buying is at half price for this week. My friends and family also have my consent to send me email as an integral part of our relationship.
However, I have not given my consent to receive adverts about pills, cheap watches, or indeed degrees in radiology. These emails are spam. They have not been sent by anyone with whom I have a current relationship, nor have I given my consent to these people to receive these emails. This is how I know this is spam.
So its very surprising and worrying to
read about the City of London Police's view on what constitutes 'consent' when it comes to network security. To cut a long story short, BT, a telecoms provided trialed a service that targets ads by analysing a user's network traffic. As far as I can tell, BT didn't inform the users of this, or actively seek their consent in the matter. When they found out, BT's users where up in arms about an invasion of their privacy and complained to the police. Reportedly, the police declined to prosecute, "</i>They said that there was no criminal intent on behalf of BT and that there was implied consent because the service was going to benefit customers.</i>" the BBC
article says.
I understand the concept of guilty mind, BT did not trial this service with the notion that they were committing a criminal act which weighs in their favour. Its not necessarily an excuse, but an action is very different if it is conducted with the knowledge that it is illegal and liable to cause harm, than if the action is conducted in complete innocence. I do find troubling the notion that consent was implied since it was "going to benefit customers." Surely, the spammers would also agree. These pills will enhance your manhood and your life. This cheap watch will benefit your wrist. Consent is either given or it is not given. In the electronic world consent can be captured and stored in an auditable form to clarify any such matter. Inventing a concept of implied consent that applies in the electronic networked world seems to me very dangerous. Would society accept an accused rapist who's defense is that the victim implied consent because the attacker believed the victim might enjoy the experience? Adopting this concept leads to the conclusion that because you would enjoy health benefits from working, then I have your implied consent to take your car. It really doesn't work. Consent is either given and can be proved, or it is not given. There cannot be any half measures that apply to the networked world.