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GSM gateway ban U-turn casts doubt on 7.5-year prosecution in Blighty

Brit on bail for nearly a decade hopes crim case will be binned

By Gareth Corfield

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The UK's communications watchdog Ofcom has overturned its ban on the use of GSM gateways (COMUGs) for overseas phone calls – leaving one of the longest prosecutions in modern English legal history hanging in the balance.

The decision comes after a controversial public consultation exercise held earlier this year, in which The Register caught the Home Office's secret spy powers unit trying to anonymously lobby the regulator and keep the ban.

The Home Office claims that COMUGs pose a threat to national security, on the grounds that forwarded calls were harder to trace back to individuals than calls placed direct because the originating caller's identity (see below) is not forwarded through the gateway.

This was a thin justification, made with the strong approval of established telcos who saw COMUGs as revenue-killing spawn of the devil. Ofcom, however, has changed its mind on both the security justification and the moneymaking side, saying in a statement: "The available evidence does not indicate that COMUGs give rise to a sufficiently direct and material risk to safety of life to justify maintaining the current restriction on their use."

It added that "mobile termination rates [have] fallen significantly in recent years," and even Vodafone chipped in to say that "the use case for COMUGs has now disappeared".

"We considered that the most relevant issue to our decision was likely to be whether the use of COMUGs would have an adverse effect on technical quality of service," continued Ofcom's statement (PDF, 33 pages) announcing the end of the ban. Mobile network operators had argued that COMUGs hogged available channels on nearby base stations, blocking out genuine consumers in favour of (someone else's) commercial customers.

COMUGs, also known as GSM gateways, are the kit behind those "call our number for discounted overseas phone calls" companies which used to be everywhere in the late 1990s and early 2000s. You dialled the COMUG number and once connected to the gateway, you then dialled the actual number you wanted to connect to. In this roundabout way you could get cheaper calls to foreign destinations. One-time Reg mobile correspondent Bill Ray's plain English explanation of precisely how the gateways work can be found here, complete with an explanation of the term "fraudulent call termination".

Ofcom banned both COMUGs and their corporate equivalent, commercial single-user gateways (COSUGs) in the early 2000s; COSUGs were typically used by businesses needing to make a large number of overseas calls. COSUGs were legalised again last year after the Court of Appeal decided, in the case Recall Support Services Ltd & others v Secretary of State for Culture, Media and Sport, that the ban broke EU law.

Prosecution rug pulled

Ofcom's decision to repeal the COMUG ban, which will take place when its proposed Wireless Telegraphy (Exemption) (Amendment) Regulations 2017 pass through Parliament, also casts into doubt one of the longest-running prosecutions in 21st century legal history.

Daniel Mahony, 42, of Kent, was charged in 2009 with two counts of illegally operating a COMUG, contrary to section 35 of the Wireless Telegraphy Act 2006. He denies the charges.

Now Ofcom has made its legally required announcement that it will change the law to legalise COMUGs, effectively repealing the criminal offence Mahony is charged with, the foundation for the prosecution is cast into doubt.

Mahony's case was adjourned earlier this year "until such time as the outcome of Ofcom's consultation process has been made public," in the words of His Honour Judge Michael Grieve QC at the March 2017 hearing before Southwark Crown Court.

The case was due for its latest hearing this morning. The Register understands that Mahony's legal team would be arguing that the prosecution is no longer in the public interest.

A spokesperson for the Crown Prosecution Service told The Reg: "The case was charged in accordance with the Code for Crown Prosecutors and remains ongoing. All cases are kept under ongoing review." ®

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