Juries 'should hear phone taps' to nail crime gangs

[Owen Lewis]

----- Original Message -----
From: Charles Lindsey <chl@clw.cs.man.ac.uk>
To: <ukcrypto@chiark.greenend.org.uk>
Sent: 11 September 2002 11:38
Subject: Re: Juries 'should hear phone taps' to nail crime gangs


> > Not too sure what you may mean by a wired bug. Though jargon is usually
> > sloppy in use, 'bugs' are generally considered to be wireless and 'taps'
to
> > be hardwired or capacitative/inductive coupling. However, where a 'tap'
> > feeds a wireless transmitter rather than a recorder (remotely or locally
> > sited) it would normally be referred to as a bug. Also, a standalone
> > hardwired system (e.g. as might used for through-the-wall eavesdropping)
> > would be generally termed a bug - as would a wireless system used for
the
> > same task.
>
> I think the distinction that is important is this:
>
> A: Two people are in close contact (within earshot, or visual range).
> What they say to each other does not constitute "communication" within
> the meaning of RIPA. If Plod plants a "bug" (RIPA Part 2), what it picks
> up IS admissible as evidence.

True but the means - and even selected parts of the take - may be subject to
PIC and not disclosed to the defence.

Also, what would be the position where a public wireless telephone system is
used for the purpose of bugging?

> B: Two people are not in close contact. They exchange messages over
> some "medium" (copper, fibre, wireless, Consignia). These constitute
> "communications" under RIPA. If Plod intercepts them (we loosely use the
> word "tap", whether or not crocodile clips are used), what he picks up
> is NOT admissible as evidence.
>
> Now the admissibility rules are clearly the wrong way around. Case A
> requires more technical sophistication than case B, and there is a
> greater need to preserve the "secret" of how it was done.

I'm not sure that is right - in either part:

        -    A 'pair of croc clips' may get at you in your house but they is
useless for getting at (say) the Chairman of BCCI in his office.

        -    'A' is rarely truly high tech but tends to require a fair level
of artisan (operator) skill. 'B' requires little artisan skill but (these
days) tends to be high(er) tech in concept.
>
> OTOH, it is common knowledge that interception in case B can be, and
> is, regularly done.

So is A. I have no figures but I'd be tempted to say that A is almost as
commonplace as popping E :-) And that is without considering the near
universal use of video surveillance, overt and covert.

Watch out for sweaty 'adolescent' raving away to house music with a bottle
of water in one hand and a baseball cap worn back to front, a la mode. Its
the cap that is the giveaway. It's likely to contain a 2.4GHz A/V 'pin-hole'
transmitter (colour with stereo mics), lithium power pack and gently cooking
the wearer's brain (not so fast as the house music at 1kW o/p though).

What have I said? They'll have to change the MO now. Not to mention the game
wardens of more than one African state (exchange baseball cap for bush hat).

>The technical means of doing it (sophisticated or
> not) are not of particular interest, and bringing evidence before a
> court that an intercepted communication contained such and such does
> not require divulging the technical details of how it was done (since,
> as I said, there is no mystery about where it was obtained).

This is only partially true.

> Also, the
> quaility of the intercept is likely to be much higher.

It *can* be. But I'd hate to state it as a general rule; there are just too
many variables.

I think the heart of the matter is that the legislation is aimed at wired
communications and, to a very large extent there is still free play for use
of wireless systems. Now lawyers are clever people though not always
technically well educated. However, I am astonished and somewhat worried
that the law show be developing as it is.

Return to first principles. The purpose with both your A and B is to
intercept communications which might have been considered private by the
participants. That the law flaps about wired (and postal intercept) but none
other) is,  to me, quite illogical. Rather the law should be concerned to
regulate the use of purposeful eavesdropping and pay little or no heed to
what the technology (if any) is involved

Somewhere along the line, justice has been sidetracked. In 1360, is first
became the law of this land - from  which agents of the Crown in performance
of their dutes were exempt :-)  - that 'Such as listen under walls or
windows, or the eaves of a house, to hear news and carry it to others to
make strife and debate among their neighbours, or thereupon to from
slanderous and mischievous tales, are a common nuisance and can be bound
over by the magistrates to be of good behaviour'. ISTR (but have no
reference) that a fine of one shilling (a goodly sum in those days) was
later sanctioned. This was the entire law of this land in the matter
reflected in the WTA's though latterly twisted by lawyers to mean something
else) until IOCA in 1985.

I have said often enough here (and not been thanked for doing so) that, for
society to run reasonably, privacy has to be conditional rather than
absolute. Conversely, it is nonsensical that regulation of breach of privacy
should be confined only to information as it passes through some conduit of
electro-magnetic energy. The lawyers - and the many privacy campaigners -
have lost their way  and, with them, justice and common sense.

Owen