sorry, but ...

[Peter Fairbrother]

On 31/07/12 10:15, Roland Perry wrote:
> In article<50153B63.6030602 at zen.co.uk>, Peter Fairbrother
> <zenadsl6186 at zen.co.uk>  writes
>>>> RIPA S.20: “external communication” means a communication sent or
>>>> received outside the British Islands;
>> [..]
>>>> [ In fact any in-transit message has not been received yet, obviously,
>>>> as it is still in transit;
>>>
>>> That's over-analysing the situation. And in any event a transmission by
>>> TCP/IP involves a handshake, so the message is provably partly received
>>> even before the transmission has complete.
>>
>> The RIPA word is "communication" not message (my fault), and I do not
>> think the communication (as opposed to the packets or bits) is received
>> until it has all reached some destination.
>
> A communication is a flow of information, not a lump of information. As
> with earlier discussion of social networking communications they are
> more analogous to phone calls than postal items. No-one would say a
> phone call wasn't received until the caller put down the phone. Not
> fully received, perhaps, but the conversation could have gone on for
> hours.
>
>> Otherwise we could talk about each and every switch in the network,
>> which is probably not what was meant. If it was you could intercept at
>> telephone exchanges without a warrant ..
>
> There's no loophole for intercepting at switches (either TCP/IP or POTS)
> because RIPA 1(1) says: "... at any place in the United Kingdom, any
> communication in the course of its transmission..."
>
> Which is one of several references to "course of its transmission"
> indicating that this is a continuous (flowing) process.


Err, while I do not think you can intercept at each and every switch in 
the network, I have to disagree a little on point - there is little I 
can see in RIPA which implies or involves flowing, except between two 
places.

A switch is a place - intercepting the wires between switches is not the 
same as intercepting at a switch after the switch has received the 
message and before it sends it on again.


What RIPA does talk about is the sender and the intended recipient of a 
communication, and more, that those are the relevant places - and I take 
that to mean at the level of eg the person who sends an email, and the 
person who it is meant for, rather than eg the network or physical or 
even application layers.

A communication is, or should be, thought of as always being between the 
highest level applicable. If it's limited to eg the physical layer there 
is no communication to the intended recipient, which I take to mean the 
person the ultimate sender meant the message for.

All this is fine until you get to messages intended for multiple 
recipients, or messages left to be picked up (eg email, facebook etc) of 
course .. [1]


It's also getting back to the argument about machines - in general the 
person who owns or operates a machine is responsible for the actions of 
that machine (unless he did not expect that the machine would perform 
those actions and was not reckless about whether it might).

The machine itself is not responsible - machines cannot take or accept 
legal responsibility, or at least not yet.





>> And clearing up the stored comms NTL vs Ipswich question would be good
>> too - the Police need a warrant from the HS to intercept telephone
>> calls, but not to intercept email? Where's the sense in that?
>
> I continue to think that the decision in NTL was flawed. Remember that
> it wasn't about intercepting emails as such, but revolved around a
> provision enabling a "preservation order" [my words] for evidence that
> was likely to be destroyed before that evidence could be obtained with a
> production order.


That was the immediate issue, perhaps, though imo focussing on it is a 
bit of a red herring - the wider issue was whether the Police could in 
effect intercept communications in transit in a public telecoms system 
if they were emails, because they were stored in transit, but they 
couldn't intercept such comms if they were not stored eg telephone calls.

And that was why the decision was wrong imo, apart from being arbitrary 
and making-up-law-on-the-fly-ish - the general protection against 
interception of communications without a warrant signed by a Minister 
was lost for email; and there is nothing I can find in PACE which 
directly allowed the Police to demand stored emails from CSPs.




[1] I guess that a message left in Facebook is a stored communication. 
If the Police etc have some power, perhaps under PACE a la NTL, to 
obtain such stored messages without it contravening the 
anti-interception provisions of RIPA, could they just intercept all the 
Facebook traffic and filter out everything which will not be a stored 
communication (ie Facebook housekeeping traffic - oops that's mostly 
traffic data so they can get that too) in order to obtain the stored 
comms under a PACE warrant?

Can't see why not ...


-- Peter Fairbrother