URLs, IPs and interception

[Nicholas Bohm]

Peter Fairbrother wrote:
...

> We need some arbitration here, I think. Any lawyers about?

...

With apologies, I haven't followed this debate closely because I don't 
understand what Phorm does, and haven't had time to try to find out. 
Discussing the law on the basis of speculation about the facts doesn't 
usually lead anywhere useful, but I will offer a couple of comments.

Intercepting a communication means doing any of the things specified in 
RIPA ss2(2):

"For the purposes of this Act, but subject to the following provisions 
of this section, a person intercepts a communication in the course of 
its transmission by means of a telecommunication system if, and only if, he-

       (a) so modifies or interferes with the system, or its operation,

       (b) so monitors transmissions made by means of the system, or

       (c) so monitors transmissions made by wireless telegraphy to or 
from apparatus comprised in the system,

  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."

I do not think "communication" is defined for the purposes of Part I, or 
at all.  I think it means everything that is sent.

Certain conduct is not the interception of a communication - ss2(5):

"References in this Act to the interception of a communication in the 
course of its transmission by means of a postal service or 
telecommunication system do not include references to-

       (a) any conduct that takes place in relation only to so much of 
the communication as consists in any traffic data comprised in or 
attached to a communication (whether by the sender or otherwise) for the 
purposes of any postal service or telecommunication system by means of 
which it is being or may be transmitted; or

       (b) any such conduct, in connection with conduct falling within 
paragraph (a), as gives a person who is neither the sender nor the 
intended recipient only so much access to a communication as is 
necessary for the purpose of identifying traffic data so comprised or 
attached."

This makes it obvious that traffic data is part of a communication.  But 
the scheme of the Act is that there are some things that can be done in 
relation to the parts of a communication that count as traffic data 
which cannot be done in relation to the other parts (or, cannot be done 
except with different kinds of authority and justification).

It follows that conduct in relation to traffic data that does _not_ fall 
within the exceptions in ss2(5) and that is _not_ authorised under Part 
II _can_ be the interception of a communication if it falls within ss2(2).

(I am not sure if I am disagreeing with anyone here, or indeed whether 
this sheds any light.)

I notice that Simon was appealed to.  He can speak for himself, as we 
know; but it is fairly unusual for officials or departments of state to 
offer guidance on whether proposed conduct is criminal.  It tends to 
look like encroaching on the function of the judiciary, and can make for 
awkwardness if the courts later take a different view.  It's perhaps 
possible if ultra-respectable corporates ask for a view on something 
commercially important (or even "in the national interest") that they 
want to do, though I have no idea whether Phorm qualifies.  But I think 
Simon might very reasonably prefer to avoid an informal comment to this 
list on issues touching the legality of a third party's proposed conduct.

Nicholas
-- 
Salkyns, Great Canfield, Takeley,
Bishop's Stortford CM22 6SX, UK

Phone  01279 870285    (+44 1279 870285)
Mobile  07715 419728    (+44 7715 419728)

PGP public key ID: 0x899DD7FF.  Fingerprint:
5248 1320 B42E 84FC 1E8B  A9E6 0912 AE66 899D D7FF