The Reg- NTL loses key email wiretap case on appeal

[Richard Clayton]

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In article <3D3E5F33.9050604@iriXx.org>, iriXx <iriXx@iriXx.org> writes

>
>NTL loses key email wiretap case on appeal
>
>http://www.theregister.co.uk/content/6/26336.html
>
>A Law Lord yesterday 

I believe it was Monday ... but there hasn't been a proper report of it
yet. The Guardian had rather more details on Monday evening:

http://www.guardian.co.uk/internetnews/story/0,7369,761496,00.html

>brushed aside concerns from NTL that it might 
>breach the law in complying with an email wiretap request from the police.

it wasn't a wiretap request -- it was a PACE production order.

What is unclear from the reporting is whether this was email that had
been delivered (which is generally thought not to be interception [in
the legal RIP sense]) or whether the Virgin customer had not yet
received the email -- in which case there's a tension between the ideas
in s2(7)

    For the purposes of this section the times while a communication is
    being transmitted by means of a telecommunication system shall be
    taken to include any time when the system by means of which the
    communication is being, or has been, transmitted is used for storing
    it in a manner that enables the intended recipient to collect it or
    otherwise to have access to it.

and the powers in s1(5)(c)

    Conduct has lawful authority for the purposes of this section if,
    and only if-
        [a,b]
        (c) it is in exercise, in relation to any stored communication,
        of any statutory power that is exercised (apart from this
        section) for the purpose of obtaining information or of taking
        possession of any document or other property;

The distinction is important because intercepted material cannot be
produced in court (and can only be accessed by a s8 warrant signed by
the Secretary of State) whereas a PACE production order (which has been
used before under the IOCA regime to access old text messages) will
produce material that can be used in court and which can need lower
levels of authorisation [[again we await a proper report to understand
the exact nature of the production order]].

>Police have welcomed the ruling as a step in ensuring they get access to 
>information they need during the course of an investigation, while 
>critics have warned of a lack of adequate checks and balances guarding 
>against abuse.

That's not really the issue (assuming the case did tackle this issue;
which to repeat, isn't yet clear) ... but rather the public policy issue
as to whether the police can evade the RIP regime altogether for email
by using PACE instead.

- -- 
richard                                              Richard Clayton

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