What is a "communication" (was Re: sorry, but ...

Peter Fairbrother zenadsl6186 at zen.co.uk
Thu Aug 9 13:33:04 BST 2012

On 09/08/12 10:54, Charles Lindsey wrote:
> On Wed, 08 Aug 2012 19:29:32 +0100, Peter Fairbrother
> <zenadsl6186 at zen.co.uk> wrote:
>>> (5) References in this Act to the interception of a communication
>>> in the course of its transmission by means of a postal service
>>> or telecommunication system do not include references to— (a) any
>>> conduct that takes place in relation only to so much of the
>>> communication as consists in any traffic data comprised in or
>>> attached to a communication (whether by the sender or otherwise)
>>> for the purposes of any postal service or telecommunication
>>> system by means of which it is being or may be transmitted; or
>>> (b) any such conduct, in connection with conduct falling within
>>> paragraph (a), as gives a person who is neither the sender nor
>>> the intended recipient only so much access to a communication as
>>> is necessary for the purpose
>> And here is another can of worms.
>> In general it is a principle of UK law that evidence once obtained
>> can be presented, whether the obtaining was lawful or not.
> Unless it is explicitly forbidden (e.g. evidence gained by
> interception may not be presented in court).

Not exactly. What is forbidden is presenting any evidence (including
intercepted content) which suggests that a s.5 warrant has been issued,
or that an illegal interception has taken place. s.18 is a bit more
complicated than that, but that's the gist.

For the sake of any doubt, I are talking here about a situation where eg 
a Policeman is searching for traffic data and incidentally sees message 
content as part of that search; and any further uses that data may then 
be put to, for example as intelligence or as evidence.

So if no illegal interception took place [1], and no warrant was
involved - as in the 2(5) situation we are talking about where people
are looking for traffic data and do not use or need a warrant - then 
evidence including content of messages can be presented in Court.

[1] no interception at all took place, even though they saw content; see 
5(a) above, and below.

> In this case, which explicitly contains the word "only", if they
> trawl for traffic data, and their "conduct" is so badly conducted
> that they pick up some non-traffic data, they may be able to
> "present" it in some

> sense, as you say, but they have still committed the crime of
> interception and a prosecution against them should succeed.

No, they have not committed any crime - they haven't even committed an 
interception, because s.2(5) specifically says they haven't, even though 
they monitored and saw content.

And s.18 would not prevent any product of the monitoring from being
presented in court, as no warrant was involved.

On 08/08/12 19:29, Peter Fairbrother continued:
> I think that also applies to this situation where once the
> communication has been intercepted (except it isn't intercepted,
> because s.2(5) says it isn't - let's just say that they have seen the
> content) then they can use the content for lawful purposes like
> preventing or detecting crime.
> I might be wrong, and a Judge might say that that secondary use of
> the content gave someone further access to the content, and it was
> thus not covered by 2(5). But it is not clear

I am going on about this further use of incidentally-seen content point 
a bit, as it is potentially very important in the context of the new 
bill which allows much more searching-for-traffic-data.

It's maybe not the intention, but any content incidentally seen during
those searches might well be fair game for further uses.

Perhaps most important of all, the content incidentally seen during the 
sort of searches envisaged in and made lawful by the new Bill would 
necessarily include the content of large chunks of the internet: almost 
all social network traffic content, and a whole lot more.

BTW, that "necessarily" is also the "necessary" in the final line of 
2(5). They cannot find secondary traffic data in a mass of content 
without looking at that content, it's simply not possible.

Now, can you see a Judge (or the "Supreme" Court) saying "you can't use 
this as intelligence even though you already have it (and have it 
legally)"?  I don't think it likely, based on similar decisions in the 

Use in evidence may be slightly more controversial, but afaics legally 
the issue isn't any different.

On another point entirely (or perhaps not...), there is more than a hint 
of what is going on elsewhere in the fact that a certificated warrant 
cannot (usually) target communications to or from a person or place - 
they are for blanket fishing searches. They are of no use for anything else.

-- Peter Fairbrother

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