zenadsl6186 at zen.co.uk
Wed Sep 14 04:42:32 BST 2011
Roland Perry wrote:
> In article <002501cc71f4$2c3547f0$849fd7d0$@net>, James Firth
> <james2 at jfirth.net> writes
>>> Would the activity of these researchers (or malicious counterparts) be
>>> an interception in the UK; and as they've modified the public DNS to do
>>> this, is it an interception on a public network and therefore criminal?
>> "Modified the public DNS", in that they lawfully purchased internet
>> They may have violated trademarks, or indeed be guilty of fraud
>> (?impersonation?), but don't see how this can be interception.
> It's difficult, isn't it! Their stated aim was to intercept (small i)
> emails, of course.
> And attaching croc clips to wires on a telegraph pole probably isn't
> illegal *as such*
Oh yes it is. It's modification "as to" make content available.
Listening to it is another, seperate, offence.
A note on intent, done for another purpose, may be slightly relevant here.
Intent in part 1 chapter 1 of RIPA comes in two or perhaps three kinds:
who the intended recipient of a communication is; the intention of a
person as to whether he meant to intercept, as in ss. 1(1); and
potentially, an interceptor's intent as whether his actions would have
the result of making content available to a person other than the sender
or intended recipient, as in the phrase "as to" in ss. 2(2).
The first kind, who the intended recipient is, is almost entirely clear.
Intention exists only in the human mind, and in this case the only mind
involved is that of the sender. It is what is in his mind which counts,
and the intended recipient of a communication is the recipient he has in
mind when he sends the communication.
Someone reading the address of a misaddressed communication might
believe that the intended recipient was someone other than the recipient
the sender intended, but he would be mistaken - the actual intended
recipient is always the person the sender intends to receive the message.
The second kind of intent, which is required for a person's actions to
be a crime, is less clear. ss.1(1) says "It shall be an offence for a
person intentionally and without lawful authority to intercept..."
But intention to do what? Intention to intercept? Intention to intercept
without lawful authority? Something else? Does a genuine but mistaken
belief that a person's actions have lawful authority, while knowing
those actions to be interception, prevent those actions from being an
offence? I am not clear on that point.
Further, interception was defined in section 2, and later the definition
may be refined by Judges, but seldom will a person decide his actions on
exactly that definition. If a person genuinely believes his actions are
not interception then they are not an offence under ss.1(1), as it is
not his intention to intercept.
Whether or not he "ought to" know his actions amount to interception.
The third kind of intent, whether the actions are such ""as to" make
some or all of the contents of the communication available, while being
transmitted, to a person other than the sender or intended recipient of
the communication", ss. 2(2), is largely unclear.
It is even unclear whether a person's intent is relevant. It is quite
possible to interpret "as to" to have strictly the meaning that the
outcome of the potential interceptor's actions is or would have been
that content was made available, irrespective of what was in the
potential interceptor's mind.
Other interpretations might include: whether a reasonable person would
expect the result of the actions to be the making available of content;
whether the potential interceptor ought to have a reasonable expectation
that his actions would lead to content being made available; whether he
actually has such a reasonable expectation; or whether he actually
believes his actions would or might lead to content being made available.
-- Peter Fairbrother
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