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.
Vervata managing director Atir Raihan told OUT-LAW that the
technology does have legal uses. "We suggest many other uses such
as cost monitoring, theft recovery, SMS archiving, child abuse
prevention," he said. "The onus on the legality is from the person
who installs it. There are many products which are sold and can be
used for legal and illegal purposes and the manufacturer of the
product is not liable."
The Home Office confirmed that Vervata was not committing an
offence under RIPA.
"Vervata are a completely legitimate and law abiding company,
and we will never do anything that breaks any law," said Raihan.
"If we are credibly advised that we are directly breaking any law,
we will immediately take the appropriate action to comply."
The software has been designated as a virus by anti-virus firm
F-Secure. " When Flexispy.A is installed on the phone it will hide
from [operating system] Symbian's built in process menu and it does
not have any visible user interface or icon," said an anti-virus
warning from the firm. "After installation the application will
immediately go into hiding and locks its files so that the
application uninstaller cannot remove it."
"There is absolutely no way that someone could install this
without knowing what it is," said Raihan. "We also make it very
difficult to send the software by Bluetooth or Infra Red. Because
of this, Flexispy is not a virus nor trojan horse."
