Is email interception legal

[David Swarbrick]

Law Reports

August 06, 2002

E-mail intercept can be legal QUEEN'S BENCH DIVISIONAL COURT Regina (NTL
Group Ltd) v Ipswich Crown Court Before Lord Woolf, Lord Chief Justice and
Mr Justice Curtis

Judgment July 22, 2002

A telecommunications company would not commit the criminal offence of
unlawfully intercepting a communication in the course of its transmission if
it intercepted e-mails which were the subject of an application for
production of special procedure material in order to preserve them pending
the hearing of the application.

The Queen's Bench Divisional Court so held in dismissing an application by
NTL Group Ltd, a telecommunications company, for judicial review of the
decision of Judge Devaux sitting at Ipswich Crown Court on September 27,
2001 to grant an application by the Chief Constable of Suffolk, pursuant to
section 9 of and Schedule 1 to the Police and Criminal Evidence Act 1984,
for an order for the production of special procedure material in the form of
e-mail information relating to a particular e-mail address during a
specified period.

Paragraph 11 of Schedule 1 to the 1984 Act provides "Where notice of an
application for an order ... has been served on a person, he shall not ...
destroy ... or dispose of the material to which the application relates
except - (a) with the leave of a judge; or (b) with the written permission
of a constable, until - (i) the application is dismissed or abandoned; or
(ii) he has complied with an order ... made on the application." Section 1
of the Regulation of Investigatory Powers Act 2000 provides: "(1) It shall
be an offence for a person intentionally and without lawful authority to
intercept ... any communication in the course of its transmission by means
of - ... (b) a public telecommunication system...

"(5) Conduct has lawful authority for the purposes of this section if, and
only if - ... (c) it is in exercise, in relation to any stored
communication, of any statutory power that is exercised ... for the purpose
of obtaining information..." Mr Anthony Hudson for NTL; Mr Rupert Overbury
for Suffolk Constabulary, as interested party; the crown court took no part
in the proceedings.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that NTL had
a computer system which automatically stored e-mails from an internet
service provider.

The e-mails were routinely deleted one hour after being read by the
recipient. The only way to preserve a customer's e-mails was to transfer
them to a different address.

NTL submitted that any order made by the court on an application under
section 9 of the 1984 Act could not apply to information in the system prior
to the order being made because, if it took the steps contemplated by
paragraph 11 of Schedule 1 to the 1984 Act to preserve the information
pending the court hearing, it would be committing an offence under section 1
of the 2000 Act.

In their Lordships' judgment, in view of section 2(7) and (8) of the 2000
Act there would be an offence committed by NTL if it transferred e-mails to
another address so that they could be available subsequently if the court
made an order under section 9 of the 1984 Act, if NTL was not entitled to
rely on some lawful authority.

The question was whether the provisions of paragraph 11 of Schedule 1
provided statutory authority for such action for the purposes of section
1(5)(c) of the 2000 Act.

Their Lordships found it impossible to accept that the intention of
Parliament in legislating in the terms it did in section 1 of the 2000 Act
was to defeat the police's powers under section 9 of the 1984 Act for all
practical purposes.

The answer must be that it was implicit in the terms of paragraph 11 of
Schedule 1, when read with section 9, that a body subject to an application
under section 9 had the necessary power to take the action which it had to
take to preserve e-mails within the system until such time as the court
decided whether or not to make the order.

That implicit authority provided lawful authority and no offence was
committed if NTL acted in accordance with paragraph 11 of Schedule 1 when
served with an application under section 9.

No harm would be caused to any third party in consequence because unless a
judge was prepared to make a production order the police had no right to be
informed of the contents of the material retained.

Solicitors: Charles Russell; Mr Eric Whitfield, Ipswich.



David Swarbrick, www.lawindexpro.co.uk
david.swarbrick@lawindexpro.co.uk Tel: +44(0)1484 384767
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