Phorm again

[Nicholas Bohm]

Clive D. W. Feather wrote:
> In article <47D3BDCA.4050701@zen.co.uk>, Peter Fairbrother 
> <zenadsl6186@zen.co.uk> writes
>>>>> Supposing that what Phorm, BT etc are proposing actually is illegal 
>>>>> -  and I can't see how it could not be - who should the crime be 
>>>>> reported to?
> [...]
>> He has no authority to investigate interceptions by IPSs etc. Nor does 
>> the Tribunal.
> 
> Actually, I'm not sure about that. s.65 is terribly written, but:
> 
> (2)(b) to consider and determine any complaints made to them which, in 
> accordance with subsection (4), are complaints for which the Tribunal is 
> the appropriate forum;
> 
> So we go to (4):
> 
> (4) The Tribunal is the appropriate forum for any complaint if it is a 
> complaint by a person who is aggrieved by any conduct falling within 
> subsection (5) which he believes-
> (a) to have taken place in relation to him, to any of his property, to 
> any communications sent by or to him, or intended for him, or to his use 
> of any postal service, telecommunications service or telecommunication 
> system; and
> (b) to have taken place in challengeable circumstances or [irrelevant]
> 
> Now we need to see if the conduct falls within (5) *and* whether it's in 
> "challengeable circumstances".
> 
> (5) Subject to subsection (6), conduct falls within this subsection if 
> (whenever it occurred) it is-
> [...]
> (b) conduct for or in connection with the interception of communications 
> in the course of their transmission by means of a postal service or 
> telecommunication system;
> 
> Subsection (6) isn't relevant here, so we've met this test. Now:
> 
> (7) For the purposes of this section conduct takes place in 
> challengeable circumstances if-
> (a) it takes place with the authority, or purported authority, of 
> anything falling within subsection (8); or
> (b) the circumstances are such that (whether or not there is such 
> authority) it would not have been appropriate for the conduct to take 
> place without it, or at least without proper consideration having been 
> given to whether such authority should be sought;
> 
> but conduct does not take place in challengeable circumstances to the 
> extent that it is authorised by, or takes place with the permission of, 
> a judicial authority.
> 
> (8) The following fall within this subsection-
> (a) an interception warrant or a warrant under the Interception of 
> Communications Act 1985;
> [...]
> 
> 
> Now, if Phorm is interception, then perhaps it would not be appropriate 
> for it to take place without a warrant. So (8)(a) applies and, thus, 
> 7(b) applies. And that's the last test.
> 
> [Yes, I'm twisting the wording, but so what?]

I wouldn't say you were twisting the language.  But Roland has pointed 
out that the Tribunal does not think it has the jurisdiction you say s65 
confers on it (referring to 
http://www.ipt-uk.com/default.asp?sectionID=1, which bears him out). 
And if you look at s67 on the Tribunal's powers to do anything for a 
successful claimant, they certainly look like powers aimed at the 
intelligence services etc.

So I wondered what their argument might be.  The only thing I could 
think of lies in (7)(b) as quoted above.  Perhaps "the circumstances 
are" only "such that (whether or not there is such authority) it would 
not have been appropriate for the conduct to take place without" an 
authority if the conduct is conduct by a person entitled in principle to 
seek such an authority.

Certainly, describing conduct is "inappropriate" in the absence of 
authority is hardly the language in which to describe conduct amounting 
to an offence under s1.

Given the limited remedies you can get from the Tribunal, and the 
probable need to attack a likely refusal of jurisdiction by making an 
application for judicial review, this doesn't sound a promising route. 
You'd probably have more fun reporting an offence to the police and DPP, 
and judicially reviewing them for failing to act.

This is just another example of how tiresomely difficult this 
legislation is to make sense of.  If Simon Davies is right that the Home 
Office have made an exception (to what I thought was a long-standing and 
sensible policy of refusing to give advice about whether proposed 
conduct was criminal) in the case of Phorm or its customers like BT, 
perhaps the obscurity of the RIPA is their justification.

When Simon (Watkin) gets round to catching up with the list (his day job 
is no doubt busy), it would be really interesting to know what advice 
has been given and where the policy on giving that sort of advice now 
stands.

As to "surely their lawyers have said it's OK", speculation is useless. 
  Legal advice depends on the facts it's applied to, and these don't 
seem to be standing still.  Lawyers can get it wrong (even the House of 
Lords can divide three to two).  Users of legal advice can misunderstand 
it.  BT et al might get warm enough words from on high to make them 
comfortable the DPP would refuse consent for a prosecution, whatever the 
technicalities.

Nicholas
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