Mobile spy software use almost always illegal, says expert

A piece of software which allows a user to track another person's mobile phone use would be almost impossible to use in the UK without breaking the law, according to a surveillance law expert.

Flexispy is the controversial software which is being sold by Thailand and UK based Vervata. Vervata's Flexispy.com site says that it is the "world's most powerful spy software for mobile phones".

The software's next release, due on 7th September, will allow users to switch on the microphone of a telephone and listen in to the handset's surroundings, Vervata's managing director told OUT-LAW. He was speaking in today's edition of OUT-LAW Radio, the weekly technology podcast.

Use of the software is almost certain to involve the committing of a criminal act which breaks the Regulation of Investigatory Powers Act (RIPA), according to Sue Cullen, an expert in surveillance law at Pinsent Masons, the law firm behind OUT-LAW.

"[According to] the definitions in RIPA on what amounts to intercepting a communication in the course of its transmission, in this case by a public telephone system, the answer is that it's a wide definition, they take a crowbar to it and expand it a bit," said Cullen. "Putting software on someone else's machine to allow you to listen in, that's open and shut, isn't it? In this Flexispy business what you're doing is you're bugging people's phones. That's not even marginal. It's not even on the fringes, or a grey area. That's a criminal offence if you do it with intention and without lawful authority."

Cullen said that even receiving the permission of the phone's owner would not be enough to avoid breaking the law. "If you look at what constitutes lawful authority both the sender and the recipient have to have consented. That can't possibly be the case," she said. "You might be able to argue that the wife knew I was putting something on her phone so she consented. That would be a bit feeble but you could raise the argument but it doesn't account for all the people phoning her up, including her lover."

Though Cullen's view is that it would be almost impossible to use the software legally in the UK, it appears that there is no law making the sale of the software illegal in Britain.