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

Tom Thomson colinthomson1 at o2.co.uk
Fri Aug 10 11:39:35 BST 2012

> -----Original Message-----
> From: ukcrypto-bounces at chiark.greenend.org.uk [mailto:ukcrypto-
> bounces at chiark.greenend.org.uk] On Behalf Of Charles Lindsey
> Sent: 09 August 2012 22:20
> To: UK Cryptography Policy Discussion Group
> Subject: Re: What is a "communication" (was Re: sorry, but ...
> 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.
In addition to Charles' points above, there seems to me to be yet another problem if this content is used in investigations and/or in prosecutions since this will inevitably entail informing other police officers, and also crown prosecutors, solicitors, and barristers (or procurators fiscal, solicitors, and advocates elsewhere in the Kingdom) .  Even if Charles were wrong (I don't for a moment imagine he is, but that's by the bye) and the content had not yet been intercepted, it would now be being made available to another party, and that making available is not an inevitable consequence of of obtaining the traffic data (since the policeman originally concerned is clearly capable of separating the traffic data and passing only that on to his superiors (or his juniors or colleagues or the prosecuting officials) so it is quite certainly an interception, and hence illegal since there is no warrant.


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