Struan Robertson, editor of out-law.com and legal director at solicitors Pinsent Masons, reckons the "powerful public interest" argument is irrelevant in considering whether the BBC acted in violation of UK computer misuse law. He told El Reg that BBC Click would do better to apologise than hide behind such shaky defences.
The public interest argument is no defence to the Computer Misuse Act. It could influence a decision by the police and the Crown on whether to take any action over the BBC's behaviour; but it could also backfire. An apology is more likely to make the problem go away, in my view, than an argument that breaking the law was the right thing to do.
Breaking the law in the public interest is an argument that vigilantes will use. It rarely wins support from law enforcement.
Some Reg readers have reported their concerns about the programme to the Met's Computer Crime Unit, which has said it's not prepared to do anything until a victim makes a complaint. Given that BBC Click carefully chose machines outside the UK and US, this is unlikely to happen.
In any case, it's not hard to argue that scant cybercrime resources are far better served in investigating profit-hungry cybercrims than BBC hacks. However, contrary to BBC Click claims, we don't think the BBC carried out a storming piece of investigative journalism. Tampering with people's PCs to illustrate the botnet risk is unethical in much the same way that breaking into homes to dramatise the risks of burglary is also a non-starter.
That's by no means a universal view. A poll by security firm Sophos, which has been among BBC Click's more outspoken critics, found that a majority (56 per cent) of the 854 respondents reckoned what BBC Click did was either against the law or "set a dangerous precedent". A third said that although the exercise might be legally questionable it "helps raise awareness", while 11 per cent dismissed the whole business as a storm in a teacup. ®