Actually my point is that it is against the PECR as well as being inherently
"wrong".
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Tim Turner
Sent: 18 April 2007 13:50
To: [log in to unmask]
Subject: Re: [data-protection] When is spam not spam?
Tim Trent's point seems to be that Bluetooth spamming is wrong. However,
English law usually says that you can do it if it's not illegal, so I think
the point is whether it is legal.
Bluetooth-enabled devices are connected with the device which transmits the
message, and the connection between them is a "network" because that's what
we call an interconnected arrangement of electronic things. We even use the
same word for people who are connected. It's not conclusive just to identify
a network. Bluetooth messages are transmitted over a network, but the PECR
question is whether they are transmitted over a "public electronic
communications network". We don't need to know what a network is, we need to
know what a "public electronic communications network". If the connection
between the Bluetooth broadcaster and Bluetooth devices is a PECN, and the
transmitted message "can be stored in the network or in the recipient's
terminal equipment until it is collected", then we're in business. But I
don't think it's enough to concentrate solely on the word "network",
ignoring what goes before it in the PECRs. If I have a Bluetooth "network"
between a phone and a digital camera in my house, is it a "public electronic
communications network"? No. So what makes it so? Is it simply that the
network operates in public? I'm not sure.
The other important thing is that if this gets tested in the courts, the
defendant will be likely to put up a sturdy defence, unlike previous PECR
cases. The "peril" is of a different order of magnitude if the company
concerned is Nissan, HSBC, Motorola, Nokia or Smirnoff (according to New
Media Age, they're all about to dip their toes). Call me old-fashioned, but
I don't think that these big hitters would be trying out this technology
blithely. I suspect that the reason why it's happening despite the advice on
the IC website is that the big companies' lawyers don't agree with the
Commissioner's interpretation. The way I read the regulations, I think
there's a loophole and a gush of marketing is about to flow through it.
Suddenly, my reliable old no-tooth mobile seems like such a good choice.....
Tim Turner
Data Protection / FOI Officer
Legal and Property Services
Wigan Council
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: Wed 18 April 2007 12:49
To: [log in to unmask]
Subject: Re: [data-protection] When is spam not spam?
And I think that is the real point. It *is* a network, even though the
connections are often ad hoc, and not necessarily wanted or consciously
permitted. And, since it is a network, it falls within the various laws and
directives and regulations which say "Spam me at your peril".
We can, of course, come back to the argument about individual vs
non-individual subscribers, but there is no way of telling here, and thus
the transmission of an all embracing signal is counter to the law anyway,
surely?
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Griffiths, Ian
Sent: 18 April 2007 10:39
To: [log in to unmask]
Subject: Re: [data-protection] When is spam not spam?
One might also argue that the network is the Bluetooth 'space' in which
devices roam about in and out of range. In fact as devices become more
popular a busy area might have perhaps 5-10 devices in range, regardless of
who is peered to who or who is actually transmitting data. Mere discover of
other handsets on an ad-hoc basis would indicate to me that a network is
certainly in place. The fact that the range of the devices is poor and they
don't all see each other is a technicality.
Ian
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: 18 April 2007 09:47
To: [log in to unmask]
Subject: Re: [data-protection] When is spam not spam?
I have been doing some research, prompted also by a comment left on my blog
and a reply to it:
http://timtrent.blogspot.com/2007/04/blutooth-broadcast-is-bluespam.html
is the specific blog message (tiny http://tinyurl.com/2z6smx ) and the
comment
included:
"So where is the network? If device A connects directly to device B by
Bluetooth there is no network between them. Any court would decide that the
words were inserted with a purpose, and that the existence of the words in
the regulations cannot be disregarded."
This got me thinking hard about networks, but not enough to research, but
the anon comment lower did:
"....of course Bluetooth is a network. The answer to where the network is if
device A connects directly to device B is a simple one: device A and B make
the network. They are the two endpoints out of which the network is built."
And anon is right. There will be some Computer Science definition of a
network which confirms this. But the Wikipedia article on Bluetooth at
http://en.wikipedia.org/wiki/Bluetooth (with all Wikipedia's faults
acknowledged) is pretty compelling in its opening paragraph.
The UKIC has acknowledged my enquiry and is passing it for answering.
This is a slow process, so I have aimed them at their own guidance note.
I hope to be able to report at least our regulator's opinion on Bluespam
when I get a full reply.
It seems to me that this is an area that is not entirely cut and dried, and
where lawyers will make money.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Roland Perry
Sent: 12 April 2007 15:05
To: [log in to unmask]
Subject: Re: [data-protection] When is spam not spam?
In message
<!&!AAAAAAAAAAAYAAAAAAAAAIfCFjaFV0BEsFq4L0YKekfCgAAAEAAAABf1HjlgMVRBlB9J
x
[log in to unmask]>, at 12:40:32 on Thu, 12 Apr 2007,
Tim Trent <[log in to unmask]> writes
>While you may well be right, Roland, the sentence " Marketing messages
>transmitted using 'Bluetooth' technology, for example, messages sent to
>all 'Bluetooth' enabled handsets within a given radius, are also
>considered to be 'electronic mail'" does look compelling.
It's just Guidance, and I agree it's compelling (or should that be "simply
quite obvious") that they are emails.
What's not compelling to me is that they are emails over a public network
(which they need to be, to be caught by PECR).
But we are just spinning our wheels here. I think I'll ask the chap who
wrote the relevant section of the Comms Act (containing the definition of
PECN upon which PECR relies) what he thinks! And let you know.
--
Roland Perry
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