Consultation on change to RIP interception definition

[Andrew Cormack]

Francis
Thanks, that does answer my question and confirms my suspicion of what it would mean. And thanks for (telepathically) expressing my vague concern so precisely :-)

So deleting the "reasonable belief" clause would mean that a deliberate interception lost its lawful authority under 3(1) as soon as it was shown that the *person* intercepted had not given their consent (e.g. because it was their spouse or parent, who pays the bill, who had done so). The ISP couldn't defend themselves by saying it was reasonable for them to take the subscriber's consent as applying to any user of that account/keyboard, because the remaining text would only leave the question of fact as to whether that person had consented. I wonder whether this was exactly why the original drafting included that phrase...

In which case I wonder whether any ISP would take the risk of launching a behavioural advertising service even if it was genuinely opt-in, since they'd always be at the mercy of a second user of the account/keyboard saying that it wasn't them who opted in.

Andrew

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> -----Original Message-----
> From: ukcrypto-bounces at chiark.greenend.org.uk [mailto:ukcrypto-
> bounces at chiark.greenend.org.uk] On Behalf Of Francis Davey
> Sent: 11 November 2010 12:45
> To: UK Cryptography Policy Discussion Group
> Subject: Re: Consultation on change to RIP interception definition
> 
> On 11 November 2010 09:01, Andrew Cormack <Andrew.Cormack at ja.net>
> wrote:
> >
> 
> >
> > Actually I'm struggling to think how a 3(1) that was dependent on the
> *fact* of whether that person had consented (which I think would be the
> effect of deleting the "reasonable belief" clause: Francis?) could ever
> be safely relied on by anyone. So maybe the net effect of the proposed
> change will actually be to delete the whole of 3(1)???
> >
> 
> To answer this and Peter's question.
> 
> At the moment the section 1(1) offence has two elements (that's how I
> read the "and"): first the action must be intentional, so accidentally
> or negligently permitting something that amounts to interception is
> not enough, the prosecution must prove intention. The crime is
> therefore one of specific intent (so for example could not be
> committed by someone too intoxicated to form the necessary intention).
> 
> The intention obvious question is whether the acts intended are just
> the interception, or whether there needs to be intention to do so
> without lawful authority. My reading is that the two are separable
> (the "and"). There needs to be no intention to do the act without
> lawful authority.
> 
> The second element is that the action is "without lawful authority".
> This looks to me like something that would have to be raised by the
> defence, but if raised would then have to be proved by the prosecution
> (caveat: I don't do crime, so someone else may know more about this
> than I).
> 
> As things stand the second element also has a mental element in that
> if section 3(1) is relied on as a basis for lawful authority, the
> prosecution will need to prove both that (i) conditions (a) and (b)
> were not met and (ii) that the defendant had no reasonable ground for
> believing they were met.
> 
> A mistaken and honest but unreasonable belief that (a) and (b) hold
> will not amount to lawful authority and so a defence based on such a
> belief and s3(1) would fail.
> 
> There are circumstances where a genuine but unreasonable belief in a
> state of affairs is a good defence, for example in R v Williams
> (Gladstone) (1984) 78 Cr App R 276, where the defendant believed,
> unreasonably, that a police officer conducting an arrest was actually
> committing an assault and ran to the defence of the person being
> arrested.
> 
> Removing "unreasonable belief" from s3(1) wouldn't emasculate it
> utterly - you would still be able to require the prosecution to prove
> that (a) and (b) weren't met - but it seriously reduces the scope of
> "lawful authority" and that part of the test then becomes one of
> strict liability.
> 
> I hope that's clear and/or helpful.
> 
> --
> Francis Davey