URLs, IPs and interception

[Nicholas Bohm]

Roland Perry wrote:
> In article <47CAEB0D.10502@ernest.net>, Nicholas Bohm <nbohm@ernest.net>
> writes
>> I assume (but it may be a technical question) that the definition is
>> sufficient to enable one to determine what part of any communication is
>> traffic data.  Can traffic data, so defined, be comprised in or
>> attached to a communication otherwise than for the purposes of the
>> system by which it is to be transmitted?
> 
> I think there are some corner cases, where it may be possible to argue
> that the "from" data isn't necessary for the purpose of sending a
> message "to" somewhere. But the "from" still seems to be traffic data.
> 
>> If not, the consequence is that the words in ss2(5)(a) "...for the
>> purposes of any postal service or telecommunication system by means of
>> which it is being or may be transmitted" serve no sensible purpose if
>> they are read as qualifying "traffic data" rather than "conduct".
> 
> Agreed, it does require at least the possibility that there is some
> traffic data which isn't there for the purposes of the
> telecommunications system (but might be there for the purposes of the
> recipient).
> 
>> And if they did not qualify "conduct", what sense could there be in the
>> opening words of ss2(5)(b), "and _such_ conduct..." (my emphasis)?
>> What is "such" conduct if it is not exactly that limited category of
>> conduct defined in ss(2(5)(a) by reference to the purposes of system?
> 
> The "such" conduct is limited to that which is related to relevant
> traffic data.
> 
>> If "conduct" in (a) meant any conduct whatever in relation to traffic
>> data, why would there be any point in defining a limited sub-category
>> of "conduct" in (b) when the two are alternatives?
> 
> (b) seems to be about being allowed to extract the data that's described
> in (a). See the explanatory notes:
> 
>         31. Subsection (5) excludes from the definition of interception
>         in subsection (2) any conduct which relates only to the traffic
>         data comprised in or attached to a communication (expanded in
>         subsection (9)), or which relates only to so much of the content
>         of the communication as is necessary in order to identify this
>         traffic data.
> 
>> They only seem to make sense if there are two kinds of conduct
>> distinguished by two kinds of purpose.
> 
> Does the explanatory note help? I agree this is all far too obscure for
> comfort.

It helps us to understand what the Act was meant to mean, but not what 
it really does mean.

Is it necessary to have access to parts of a communication that are not 
traffic data in order to identify what part of it is traffic data?  The 
note, and presumably therefore the draftsman, assumes this.  (But bear 
in mind that the draftsman doesn't normally prepare the explanatory 
material - they're much too busy, and it's left to officials, who have 
to assume that the Act really does what the draftsman was instructed to do.)

Nicholas
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