Is email content scanning interception?

[David_Biggins@usermgmt.com]

Peter Fairbrother wrote:

> You seem to imply that if a machine does it on x's behalf it is making
> content available to x. Hmmm...

No,  I'm trying to suggest that if a machine does it on x's behalf then
it is NOT making the content available to anyone except x.

If a client pays me to go and install AV on their machines,  I am not
performing interception, nor is the AV on the client machine.

If a client pays an ISP to install AV on the machine on which the mail
is stored for POP3 collection (and since they are paying for the POP3,
and have the password to it, it may also said to be under the client's
control)  then again, surely that AV is not performing an interception -
the content is not thereby made available to the ISP nor to anyone else
(including software) not contractually and effectively under the direct
control of the client.

> However, you cannot legally so contract under RIPA.

Agreed,  but I'm not sure that this is what is happening in this case.
I'm arguing that the AV filtering of a POP3 mailbox is equivalent to an
action performed by the client, not the ISP, UNLESS the AV puts the
suspect mail into a place for the attention of the ISP.

Take my own ISP - they provide filtering software on the servers, but
THEY DO NOT TURN IT ON!   I have a control panel,  under which I am
responsible for turning on (effectively installing to my mailbox) the
AV.

In these circumstances, I am VERY clearly responsible for running the
software - on the ISP's machine perhaps, but I am the one choosing to
run it, not the ISP.

In such a case, I fail to see any difference between this, and running
the software installed on my own machine.

A trivial extension is where I then pay the ISP to install it on my
mailbox for me, instead of my being responsible for turning it on
myself.

How does this differ from a client asking me to install AV on their own
machines?

> You'll notice I've changed the subject line. The only 
> difference between
> porn scanning and virus scanning is that viruses might damage the
> transmission system in ways porn wouldn't, and thus might be legal
> interception under s3(3). That doesn't apply here.

I've chosen to widen it back a bit - because as well as porn or AV,
there may be issues such as the way in which Yahoo is modifying words in
emails, messages and web page listings, in order to try to prevent
malicious content that would not damage the transmission system, but may
damage the recipient's sytem.

At some point in the discussion we may have to more strictly separate
these, as the cases diverge.


## dave ##