Doormat-ologist needed

[Peter Fairbrother]

Charles Lindsey wrote:
> On Wed, 08 Sep 2010 13:00:04 +0100, Peter Fairbrother 
> <zenadsl6186 at zen.co.uk> wrote:
> 
>> Both "in transmission", and having "been transmitted", Clear as day.
>>
>>
>>> the law cannot be intending to make a distinction between whether 
>>> someone has bothered to read them or not.
>>
>> It *doesn't* make any such distinction. That's the point.
>>
>> If they are stored in a system - whether public or private - which has 
>> been used to transmit them, so that the recipient can access them, 
>> then they are "in transmission". It makes no difference whether the 
>> recipient has already accessed them or not.
> 
> I think not. If the "doormat" doctrine has any validity at all (and I 
> believe it does), 

So do I.

> then once the message has reached its intended 
> destination (e.g. a computer or an answering machine), then it has been 
> "delivered", and is no longer in transmission.

A message's destination, or rather it's intended recipient, is always a 
legal person - though the legal person might be a machine rather than a 
human.

The destination cannot ever be a system used to transmit it though, by 
the simple definition of "transmit".

Once a copy has reached that person, that copy is no longer in the 
systems used to transmit it. It has passed the doormat.

That's where the doormat lies - when it has passed out of all the 
systems used to transmit it.

******
Nothing you can do to that copy can then be interception - because it's 
no longer in the systems used to transmit it.

You can only intercept by doing things (modification, monitoring etc) to 
those systems.
******


However if there are any copies which are stored in any of the systems 
used to deliver it so that the intended recipient can do something with 
them (collect or otherwise access them), then the communication is still 
in transmission for the purposes of section 2.


Incidentally, that includes both a copy in the system and a copy which 
is out of it. Both copies are "the communication". Both copies are in 
transit for s.2 purposes.

The copy in the systems can be intercepted, and that would perhaps be 
illegal as well.

But you can do what you like with the "outside" copy, without it being 
interception, even though it is a copy of a communication which is still 
in transmission.

You aren't doing anything *to the systems*, so it can't be interception.



> If only one copy of the message exists, then that is the end of the 
> matter. But if a second copy has been retained on the public side of the 
> doormat (has not been deleted from the POP3 mailbox), then that copy is 
> still "in transmission" (from the bits of the act that you quoted), 
> because the recipient can still request it. 


I think we are mostly in agreement, except for exactly where the doormat 
is. (and maybe the small switcheroo I just pulled above <grin>)

It's not "has this copy passed out of the public system?", it's:

"Has every available copy passed out of every one of the systems used to 
transmit it?".

Until that happens the communication is still in transmission.

Iirc, that's what Lord Bassam actually said: and it's also what RIPA 
clearly says.



In the case of texts on mobiles or emails, one of the systems used to 
transmit them is the mobile handset itself, or as much of the 
recipient's computer as was used for that purpose, ie to transmit them - 
the TCP stack, the email program etc.

These are undoubtedly private telecommunications systems as defined in 
RIPA, are sometimes attached to a public telecommunications system, and 
they are being and/or have been used to transmit the message.

So if a copy is kept in the mobile or computer (so as to be available to 
the recipient), it is undoubtedly still "in transit" according to 
section 2(7).

And it's in the system which has been used to transmit it, so eg 
monitoring or copying it would be doing something in s.2(2) to a system, 
and would be interception.



> If he then deletes it 
> (whether or not the telcom actually deletes it or simply marks it for 
> deletion later), then it is no longer "available" to the recipient.

Interesting point. But yes, if it isn't available then it doesn't affect 
the transmission status of the communication (only available copies do).


> RIPA allows warranted interception of stuff still "in transmission".  If
> they want something already "delivered", then they need a PACE warrant.

RIPA also allows the Police etc to intercept stuff in transit which is 
also a stored communication under a PACE warrant, not an interception 
warrant.

This would apply to texts in seized mobiles, emails in seized computers, 
ansaphone messages etc. Whether read or not, the Police can look at them 
with a PACE warrant - and perhaps they don't even need a warrant to look 
at them, under PACE, but I'm not sure about that.


It probably shouldn't extend to the Police intercepting unread email and 
texts in the public systems, and almost certainly it wasn't intended to 
- but on the face of it RIPA allows PACE to be used for this (if PACE 
allows it).

Whether PACE itself allows it is another matter. The judge in the NTL v 
Ipswich case thought PACE did - I disagree, but I don't know enough 
about PACE to be sure.


BTW, does anyone have a link to an updated copy of PACE? I have the 
original, but when people quote it it seems different.

-- Peter Fairbrother