Doormat-ologist needed

[Peter Fairbrother]

Richard Clayton wrote:
> In article <4C872C4A.3030805 at pmsommer.com>, Peter Sommer
> <peter at pmsommer.com> writes
> 
>> On 08/09/2010 04:38, Peter Fairbrother wrote:
>>> Caspar Bowden (travelling private e-mail) wrote:
>>>> Doormat-ologists' opinion please of:
>>>>
>>>> http://www.guardian.co.uk/media/2010/sep/07/phone-hacking-voicemails-law-int 
>>>>
>>>> erception .Addressing the home affairs select committee today John
>>>> Yates, the assistant Metropolitan police commissioner, repeated
>>>> earlier claims by police that cases of hacking into voicemails could
>>>> only be prosecuted if the victim had not yet listened to their
>>>> messages.
> 
> This isn't a surprise at all -- it's been the general view for some time
> (and AIUI, is regularly applied to SMS messages -- which the telco often
> keeps a copy of....)  

Yes, the police like that view - but they are about the only ones who 
do, and it's obviously incorrect.

> It is also consistent with the view taken in the
> NTL v Ispwich case [yes I know, that was unfortunate as well] as to what
> "transmission" meant.

The idea that messages can be in transmission after receipt is equally 
consistent with that judgement. The Judge in NTL v Ipswich did say:

"Subsection (7) has the effect of extending the time of communication 
until the intended recipient has collected it."

This is correct as it stands, *as long as you do not assume that it 
means that once it has been collected it is no longer in transmission*. 
Which is something the Judge did not say. The Judge did not address that 
issue. He went on:

"It is essential on the evidence in this case that if NTL are to 
preserve the material, they take action before the intended recipient 
has collected the e-mail. Subsection (7) means that we are here 
concerned with what happens in the course of transmission."

and found that it was (of course) in transmission, but it was lawful for 
NTL to preserve it under PACE.

-- Peter Fairbrother