Consultation on change to RIP interception definition

Peter Fairbrother zenadsl6186 at
Wed Nov 10 15:58:44 GMT 2010

Ian Batten wrote:
> Richard Clayton wrote:
>>> There is a brand new consultation from the Home Office which aims
>>>  to fix the deficiencies in UK interception law that were 
>>> identified as a result of the Phorm debacle...

>> <
>>  lawful-intercep/ripa-amend-effect-lawful-incep>
> Given that potential value of an interception-based advertising 
> proposition, and the investment that would be involved in setting it 
> up, £10K (page 5 (*)) is neither here nor there.

I think you missed this bit: the £10k is for unintentional
interceptions, a new additional civil offense. It only applies to CSPs. 
AFAICS the criminal offence of intentional interception will continue as-is.

Yes they have made a dog's dinner of the proposals, but I don't think
it's quite as bad as you make out, and it isn't a license to intercept.

As soon as the ISP is fined, or perhaps even as soon as the issue is
raised by the IoCC, the ISP has to stop what it was doing, as it is now
aware that what it was doing was/is interception, and if it continues it
will be intentionally intercepting, which is a different, criminal not
civil, offense, with prison terms attached.

On one specific point, on Page 6 it says: "If the IoCC decided to impose 
a penalty, the IoCC could, in addition, serve an enforcement notice on 
the CSP requiring it to halt the interception that is the subject of the 
notice." I think the IoCC, and maybe any Crown Court as well, should be 
able to serve an enforcement notice without imposing a penalty.

And I still think the Information Commissioner is a better person to 
deal with this, rather than the IoCC - maybe the IoCC should deal in 
cases when there may be an interception warrant involved, and the IC in 
other cases?  The IoCC keeps his stuff secret, the IC doesn't.

On another matter, there is one bit in the document I don't understand 
at all, it's in the first part, which deals with the granting of 
consent, page 3:

The current provisions do not provide the required clarity. This is 
because “reasonable grounds for believing” is open to different 
interpretations. We intend to remove the ambiguity in section 3(1), and 
thereby ensure that the provision is consistent with the definition of 
“consent” supplied by Article 5(1) of the E-Privacy Directive and 
Article 2(h) of the Data Protection Directive.

The Directives make clear that consent to interceptions of electronic
communications by persons other than users must be “freely given 
specific and informed”.

The bit I don't understand is the "persons other than users" bit. I 
don't have a clue what they mean by that.

Otherwise that part seems not-too-bad too, IF the changes actually do 
what they say they will.

-- Peter Fairbrother

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