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

[James Hammerton]

> 
> Peter Fairbrother wrote:
> > Under RIPA the interception can be the the modification of or
> > interference with the system, ss.2(2)(a).
> Indeed true - providing (and this is the distinction we are having trouble
> with) the changes are made "as to make some or all of the contents of the
> communication available, while being transmitted, to a person other than the
> sender or intended recipient of the communication."
> 
> you seem to believe that adding a additional virus-checking stage to the
> normal email processing is making available to an individual; I can't see
> how this can possibly be the case, and apparently nor can several other
> people here.
> 
> If nothing else, take the assumption that storing mail (however temporarily)
> on a mailserver in the normal course of operation is "interception" under
> the act - that is, that mail is "made available" to the operator of the
> server as he could examine it in the spool dir while in transit. That is
> ok - you are defining anything required for the normal operation of the
> machine as being lawful interception.
> so you have the case that *every* email ever visiting that machine is
> lawfully intercepted and "made available" to the operator. how then can it
> also be *illegally* made available to him? You are defining him as having
> lawful access to every email in his spool dir; if an additional daemon runs
> on that code, it can't possibly give him any more information than he
> already has lawful access to.
> It doesn't make sense, and it opens holes in the law big enough to drive a
> truck though.
> It is simply more sensible (and both in accord with normal perception and
> the concept of "making available") to assume that an act of interception
> occurs if the operator examines in-transit mail at any point; that it is
> lawful interception if he so examines it for reasons relating to the
> operation of the service, and not if he examines it for any other reason. It
> would also be an act of interception if mail were spooled specifically to a
> place so that an operator (or other third party) could look at it. It isn't
> interception if mail is stored, altered or deleted by an automated process,
> as an automated process is itself incapable of being a "person" for the data
> to be made available to, and the data is "made available" only to a daemon
> process, not a real or corporate person.

Let's suppose we interpret the Act this way. If the automated
process deletes all emails critical of the government and all emails
that are encrypted via PGP then you're saying it is not interception.

I realise this is a point about how we'd want (or more accurately not
want) RIPA to work rather than how it will be interpreted, but it
suggests to me there is some sense in Peter Fairbrother's
interpretation of it.

James