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

Charles Lindsey chl at clerew.man.ac.uk
Thu Aug 9 22:20:22 BST 2012

On Thu, 09 Aug 2012 13:33:04 +0100, Peter Fairbrother  
<zenadsl6186 at zen.co.uk> wrote:

> 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.

But the "conduct" of Plod in this case is not covered by either (a) or (b)  

(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

because it takes place in relation to a portion of the communication which  
does not consist of traffic data and it was not necessary to see that  
message content because he could/should have averted his eyes (aka used a  
properly designed filter) when he came to it.

Only if it could be demonstrated that designing such a filter was truly  
impossible could it be claimed that his conduct was "necessary".  
Otherwise, it WAS interception, and he had no warrant to legitimise it.

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

No, he is not covered at all by 5(a). There is a slight possibility that  
he might be covered by 5(b), but he would have to justify that.

> 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.

Isn't it? Negatives are notoriously difficult to prove.

Charles H. Lindsey ---------At Home, doing my own thing------------------------
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