sorry, but ...

[Peter Fairbrother]

Hi Caspar


> 'fraid don't have time to answer all these points, but one of the main
> points of the probing amendments on 16(3) was to establish if they were
> intended to make Overlapping warrants obsolete. The answer in Bassam's
> letter was an unequivocal "no".


What's S.16(3) for then? Afaics it does slightly more than an 
overlapping warrant did.

That was mostly a rhetorical question ;^) ... I have never thought that 
Lord Bassam ever actually understood the complexities of RIPA.


> I don't think Facebook raises any new points of principle regarding
> interpretation of external/internal, than posting messages to a offshore
> bulletin-board system with a open or closed membership.

Yes - except Facebook is used very much more.

-- Peter


How the
> interpretation works we don't know (one of the main drawbacks of having
> all of this adjudicated inside the head of a single Commissioner - who
> have not seen fit to discuss publicly in 26 years)
>
> when I said "it doesn't matter", I just meant that Bassam letter makes
> it clear that internal communications "inadvertently" intercepted under
> an external warrant do not break the law.
>
> Caspar
>
> On 07/25/2012 02:36 PM, Peter Fairbrother wrote:
>> Hi Caspar, long time no see.
>>
>> On 25/07/12 09:03, Caspar Bowden (travelling) wrote:
>>>
>>> Hi Peter
>>>
>>> On 07/25/2012 12:35 AM, Peter Fairbrother wrote:
>>>>> stream, and it's looking for traffic data in traffic that's to
>>>>> let's say
>>>>> the Facebook or Twitter or googlemail or WoW or Habbo sites.
>>>
>>> (AFAIK Facebook say they fall under Irish jurisdiction for their EU
>>> users w.r.t DP law at least)
>>>
>>>>> These are afaik all hosted in the US, but they have strong UK
>>>>> connections.
>>>>>
>>>>> Let's suppose both Alice and Bob are in the UK. Now suppose Alice
>>>>> sends
>>>>> Bob a message through facebook, or another of the US social media
>>>>> sites.
>>>>>
>>>>> The black box sees and finds the traffic data concerned with Alice's
>>>>> message, quite lawfully under the new bill - and the traffic data it
>>>>> sees tells it it's an external communication, a message to a server
>>>>> outside the UK.
>>>
>>> AFAIK the last word (but grateful for any later ref) we have on HMG's
>>> understanding is from 4th July 2000 (this was in response to FIPR
>>> probing amendments about the new "domestic trawling" warrant in S.16(3),
>>> misleadingly placed in a section called "Safeguards").
>>
>>> In theory, what defines internal/external is whether the communication
>>> (at whatever protocol level) is "received" in the UK (rather than where
>>> a server is located), but in practice this doesn't matter
>>
>>
>> Could you say why it doesn't matter? That's not clear to me. Thx.
>>>
>>> http://www.fipr.org/rip/Bassam%20reply%20to%20Phillips%20on%20S.15.3.htm/
>>>
>>> (worth reading whole thing and context at
>>> http://www.fipr.org/rip/#Overlapping)
>>
>> Lord Bassam:
>> I confirm what I said in the House, that a communication from one
>> point in the British Islands to another point in the British Islands
>> is 'internal' even if its route takes it outside the British Islands.
>>
>> [...]
>>
>> and
>> Lord Bassam:
>>> Communications that originate and are received in the UK are always
>>> "internal";
>>
>> So says Lord Bassam. But I very much doubt that he had Facebook in
>> mind when he said that, so even if he was correct (he wasn't[1]), or
>> if what he said had any legal significance because he said it, it
>> doesn't apply to the Facebook situation.
>>
>> And so as ever we are left with the plain wording of the law:
>>
>> RIPA S.20: “external communication” means a communication sent or
>> received outside the British Islands;
>>
>> When Alice sends her message to Bob via Facebook in Eire, is her
>> communication received by Facebook?
>>
>> I'd say it was, and I can't see a dozen Judges disagreeing.
>>
>> She might for instance be sending it to Facebook so Bob and Chas could
>> see it, or all her friends could see it - does it make any difference
>> if only one person can see it ?
>>
>>
>> Note this situation is different to an IP packet passing through a
>> third country - it is harder to say then that the communication is
>> received by the router (although the packet obviously is).
>>
>> If she is sending her communication to Facebook then it's an external
>> communication, and it can be intercepted, including content, under an
>> 8(4) warrant.
>>
>>
>> So what can "they" do under an 8(4) warrant? They can look for
>> keywords, they can look at it all - about the only thing they can't do
>> is sort through it for communications to or from a particular person.
>>
>> Except of course they can do that too, if the SoS signs a RIPA S,16(3)
>> certificate which allows it. That certificate can apply to an
>> individual, to some individuals who fit a particular description, to
>> groups, or the whole population - there is no limitation to the number
>> of people named or described in the certificate.
>>
>> (neither is there a limit to the duration of a 16(3) certificate.
>> Also, the certificate which turns an ordinary warrant into a S.8(4)
>> warrant does not have a limited life either. The warrant does, but the
>> certificate does not. How many SoS's have we had since 2000? It would
>> only take two signatures from any one of them... )
>>
>>
>>> as is well known, some of these will go abroad en route and
>>> so be carried on primarily external trunks. It is _not possible to
>>> intercept the external communications on the trunk without intercepting
>>> the internal communications as well.>>>_
>>>
>>>
>>>>> Now suppose a SoS has signed a blanket warrant to allow the
>>>>> black-box-operating-agency, hereinafter BlackBoxHQ, to intercept all
>>>>> external communications (which he can do with a single stroke of
>>>>> the pen
>>>>> under RIPA 8(4)).
>>>>>
>>>>> BlackBoxHQ can see that Alice's message to Bob next door is in it's
>>>>> first step actually a message to a server in the US, and thus an
>>>>> external communication - and then BlackBoxHQ can look at Alice's
>>>>> message's _content_, not just it's traffic data.
>>>
>>> Yes, but FWIW (from Bassam letter)
>>>
>>> <<<This selection is in practice designed to collect /external/
>>> communications that fit the descriptions in the certificate. It is
>>> therefore not likely to catch many internal communications. It would of
>>> course be unlawful to /seek/ to catch internal communications in the
>>> absence of an overlapping warrant or a certificate complying with clause
>>> 15(3).>>>
>>> (original is italicized)
>>>
>>> This was the most arcane controversy of RIPA (apart from Pt.3) and it
>>> proved impossible to get media interest. But given the IoCC has never
>>> commented on certificated warrants since the first report after IoCA, we
>>> have no idea how diligent he may be at ensuring that nobody is "seeking"
>>> to catch internal communications in this way.
>>
>>
>> I think you are missing my point. What Bassam is talking about here is
>> whether internal communications get swept up in a search for external
>> communications.
>>
>> The issue I was addressing is intercepting external communications,
>> and Lord Bassam's words are not relevant to that - he simply assumes
>> it's ok.
>>
>>>
>>> There is a nastier legal problem, which I call "how do they know there
>>> is a pearl inside the oyster, unless they have already looked inside" -
>>> this is (badly) explained in the briefing notes at
>>> /http://www.fipr.org/rip/#Overlapping.
>>
>> Yes, that's confusing and sometimes wrong.
>>
>> /It seemed to me the first IoCC
>>> fudged this point in his invention of "overlapping warrants", and it has
>>> never been cleared up or referred to publicly since.
>>
>> I don't think they have them anymore?
>>
>> The grounds for a certifying a warrant are much broader now - so broad
>> that any restrictions they might impose are almost meaningless.
>>
>> They also have S. 16(3) certificates instead if they want to target
>> individuals, or groups (or everybody, if they want).
>>
>> So I don't think they need them anymore either.
>>
>>
>> -- Peter
>>
>> [1] an email is sent to two people, one in the UK, one abroad. The
>> traffic from the sender to the mail server is a single communication.
>> It is external because it is received by person two abroad, even
>> though it is received by person one in the UK - however it "originated
>> and will be received in the UK" and should therefore be internal
>> according to LB.
>>
>> There are several other circumstances where the statement
>> "Communications that originate and are received in the UK are always
>> "internal" would be just plain wrong, and inconsistent with the
>> definition “external communication” means a communication sent or
>> received outside the British Islands; - unless of course when he uses
>> "internal" he means something other than "not external", the
>> apparently relevent definition.
>>
>> It is almost
>>> exactly analogous to the issue that later created the tremendous furore
>>> in US about "warrantless wiretapping", with the difference that US law
>>> protects its own citizens categorically by nationality (which was
>>> tougher to wriggle out of - until 2007/8 - than internal/external
>>> distinction). There is some kind of irony (not sure what kind) that
>>> Bassam's note was written on (US) Independence Day ;-)
>>>
>>> Caspar
>>>
>>> /
>>>
>>> /
>>
>>
>>
>>
>
>
>