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)  
in:

(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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