Conduct when obtaining communications data

[Charles Lindsey]

I think the problems with Plod breaking the law at will in order to
plunder communications data from an ISP (e.g use of a Jemmy in Scenario
25, though I suspect hacking into Isaac's system in contravention of the
Computer Misuse Act might be more realistic) can be simply covered by
the following simple amendment:

    S20. - (2) Conduct to which this Chapter applies shall be lawful for
    all purposes if-
        (a) it is conduct in which any person is EXPRESSLY authorised
        or required to engage 40 by an authorisation or notice granted
        or given under this Chapter; and
        (b) the conduct is in accordance with, or in pursuance of, the
        authorisation or requirement.

The only change is the insertion of the word "expressly" (cf use of
that word in S5:(6)(a)). So if the authorisation does not say that
a jemmy can be used, then Plod can be punished for using it (modulo
persuading the CPS to prosecute him, of course). This must then be taken
in conjunction with S21:(5) which requires any conduct required by
the authorisation or notice to be "proportionate". I think this might
even make it ECHR-proof, and I also think Plod would have a hard time
convincing the Commissioner or the Tribunal that any such thing was
proportionate, given that he could have just as easily served a notice
on the ISP to deliver it up peacably.

Note that this proposal is a fall-back, to be held in reserve in case
we get no satisfactory answer as to why S21:(3) authorisations or the
draconian S20:(2) are needed in the first place. And note also that
there is no provision in chapter 1 for Plod to be exonerated from
criminal acts or civil liability when performing an interception, except
for the actual interception itself.

Charles H. Lindsey ---------At Home, doing my own thing------------------------
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