Is porn scanning interception?

[Nicholas Bohm]

At 22:26 18/07/2002 +0100, you wrote:
>Nicholas Bohm wrote:
>
> > As to "makes available", these words have no special meaning, and common
> > sense is required.  One aspect of common sense involves not interpreting
> > the words to cover cases which they are most unlikely to have been intended
> > for.
>
>So if one of those cases arises, what do we laypeople (or you lawyers) do
>then?

Take the words not to have a meaning that produces the unintended result.


>A fine example is when a machine does the scanning for a person instead of
>the person doing it directly. The person running the scan has in effect had
>content made available to him, if not made available directly so he can read
>it.

This argument assumes what it purports to demonstrate, namely that "makes 
available" includes the case where the arrangements involve the machine in 
performing an automated process without in their ordinary course presenting 
content to an observer.

You have argued elsewhere that he who pulls the trigger on a gun kills 
someone despite the intervention of a sequence of mechanical consequences, 
which is of course true because pulling the trigger causes the death in 
anyone's parlance.  That is what distinguishes the case from automated 
scanning, where the process only makes the content available to a person if 
you chose to interpret "makes available" in a particular way.


> >
> > So the fact that the activities and procedures of ISPs would allow them to
> > read their customers' mail if they chose cannot mean that they are all
> > engaged in illegal interception.
>
>I agree, the act that would monitor transmissions or modify the behaviour of
>the system hasn't happened.

The act is setting up the procedures in such a way that they could read the 
mail if they chose.


> > It follows that if automated virus or
> > porn scanning is carried out without human intervention being involved, and
> > the scanning does not alter the degree to which the mail is available to a
> > person other than the intended recipient, it is not "interception" as 
> defined.
>
>There must be some human intervention involved - someone must set up the
>scanning (and usually maintain it. It doesn't just happen).

Just as someone must set up an ISP's network and procedures.

Regards

Nicholas

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