Retrospective Warrants: Legal Theory?

[Peter Fairbrother]

On 17/06/14 09:08, Ian Batten wrote:
[..]
> 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.

I'm pretty sure they would - in law a "person" is not the same as a 
human being, for example a company is a "person". I don't think it makes 
any difference whether you use software or eyes.

Note, the looking-at isn't the interception - it is the making available 
to look at which is.



My 2p: GCHQ scoop up all the traffic on external cables etc., and store 
it, under a certificated warrant. They can obviously also look at it 
under the warrant, and the warrant is renewed as often as required.

They can also scoop up and store any domestic traffic which has gone on 
a hop abroad on the cable - this is lawful under ss.5(6)(a), "conduct 
(including the interception of communications not identified by the 
warrant) as it is necessary.."

Now here is the controversial bit (which some may disagree with - I 
append ss.2(8) for the perusal of those folks):

Once the traffic is scooped up and stored, they can then look at it 
*without that looking being an interception*, as it is no longer in 
transmission. (ss.2(2))

ss.2(7) only covers cases where the traffic is stored by the telecom or 
in the system which is/was used to transmit it. It doesn't cover GCHQ's 
stash.

ss.2(8) does not cover the looking-at, as the "diversion or recording", 
which is the interception, has already happened (and was lawful).

The traffic is now outside the system, has passed Lord Bassam's doormat, 
and is no longer in transmission - so looking at it is no longer an 
interception, as it is not being made available whist in transmission.




GCHQ can't lawfully scoop up all the traffic from domestic cables, and 
probably don't. If they did, subsequently looking at it would not be an 
interception either.


There may be DPA considerations which have to be applied when GCHQ looks 
at stored data - but not RIPA ones.


-- Peter Fairbrother


"2(8) For the purposes of this section the cases in which any contents 
of a communication are to be taken to be made available to a person 
while being transmitted shall include any case in which any of the 
contents of the communication, while being transmitted, are diverted or 
recorded so as to be available to a person subsequently."