Roland Perry - "is an ISP a 'Person'?"

[Peter Fairbrother]

David Howe wrote:

> at Tuesday, October 01, 2002 2:57 PM, Owen Blacker
> <owen.blacker@wheel.co.uk> was seen to say:
>> But if you (as either the natural person or the body corporate)
>> specifically requested that the computer perform that unattended
>> task...
> True enough; however, if you assume that, in order for interception to
> take place some individual must "see" it -

The expression in RIPA is "make available", not "see".

> then the machine doing the
> seeing must be part of the "being" represented by the body corporate.

The "person" who controls the machine is the person making use of content,
is the "person" to whom the content is "made available" (for his use, as
input to the scanner's decision-making process), and is the RIPA "person"
involved. 

He's the person who commits the act of modification, interference or
monitoring that constitutes the "interception" under RIPA. "Interception" in
RIPA is not necessarily looking at mail. The "person" can be a human or body
corporate, or both. That's the OIC's opinion, and mine.


The argument that "the machine is part of the Company" is unnecessary. But I
agree with it (I proposed it here some time ago).


> As
> a side effect, then the selective interception warrants issued under RIP
> can't exist - by definition, you must be inspecting each mail to
> distinguish covered from uncovered mail, and if the inspection mechanism
> is not excluded from the definition, you are blanket-intercepting
> everything, then discarding what you don't want.

Inspecting would be lawful under 5(6) (and probably other clauses too). As
you'd only need to inspect traffic data the onus is less - in fact the
inspection itself might not come under the definition of interception at all
(under 2(5), if memory serves, though that _is_ a can of worms), although
inputting the traffic data output from the inspection process to the
subsequent selection process would be interception (but not a selective
interception, as the selection process is applied to all emails), and
running the selection process would be interception too (although you'll
have to make up your own minds as to whether that's a selective
interception).

Pause for breath...

Outputting selected email, or passing selected email on to the Police, would
be a selective interception.

> Once you start accepting that a machine can perform interception as a
> "third party" capable of "seeing" a message, then you open a big can of
> worms; is echo cancelling interception? is rejecting mail based on size?

I think they both are.  Echo-cancelling is lawful under 3(3), and rejecting
mail based on size is probably lawful under 3(3) too, if it's done "for
purposes connected with the provision or operation of the service".

A happy conclusion, not a can of worms.

Makes a nonsense of the usual meaning of "interception" of course, but RIPA
has already mangled the word quite irreparably, under any interpretation.

-- Peter Fairbrother