Retrospective Warrants: Legal Theory?

[Ian Batten]

On 17 Jun 2014, at 10:16, Nicholas Bohm <nbohm at ernest.net> wrote:

> On 17/06/2014 09:08, Ian Batten wrote:
>> The GCHQ/NSA narrative on bulk interception appears to be that it's OK provided the data isn't
>> looked at by humans without a warrant.   There seems to be an assumption that it's OK to data-mine
>> bulk data, but that before the data belonging to an individual is looked at by humans there has to be a warrant.
>> 
>> I think the first part of that argument has a fairly straightforward legal basis (whatever my personal view
>> might be on the morality of it). RIPA S.2(2) defines intercept to occur when content is made available
>> "to a PERSON other than the sender or intended recipient of the communication" (my emphasis). 
>> I doubt a court would agree with the contention that software under the control of a person is equivalent to a person.
> 
> This is inconsistent with section 16(2), 

That's an interesting point.

My reading is that section 16 is only engaged by "certificated warrants", S.8(4), and that appears
to exclude material relating to people located in the UK  S.16(2)(a).  But I confess to struggling
with the language ("falls within this subsection so far only as it is selected to be read, looked at or listened 
to otherwise than according to a factor which" --- does the otherwise mean "other than as in the follow
sections" or is it attached to the "listened to"?)

ian