LBPR's and pr0n etc. scanning

[Nicholas Bohm]

At 17:40 08/11/2002 +0000, Peter Fairbrother wrote:
>Has anyone else looked at RIPA 4(2) recently? That's the bit whereby the HS
>can make LBPR's.
>
>4(2) says he can do it regarding
>(a) communications by means of which transactions are entered into in the
>course of that business; or
>
>(b) other communications relating to that business or taking place in the
>course of its being carried on.
>
>So if a Company scanned for pr0n, or private email, or CV's, or job offers,
>as has been reported here happens, that could not be covered by the LBPR's,
>and would be actionable.
>
>There's a possible debate about the meaning of "taking place in the course
>of its being carried on", but I think that is a well used phrase with a
>specific meaning in law. Any lawyers care to comment?

A careful answer would require research I don't have time for; my 
recollection is that this expression is regularly used but its meaning 
varies - it takes its colour from the legislative context.

In this context I think a court is likely to prefer a meaning which enables 
a business to scan mail sent or received through its systems to detect 
items sent or received in circumstances suggesting misuse of those systems, 
if such a meaning is reasonably possible.  It seems arguable that what is 
sent or received through systems a business maintains for business purposes 
is sent or received in the course of the carrying on of that business.

The contrary is of course also arguable, and in some ways fits the precise 
language a little better; but law isn't software, and doesn't work like it, 
and its more teleological approach seems to me more likely to produce the 
result I suggest.

Regards

Nicholas

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