Retrospective Warrants: Legal Theory?
zenadsl6186 at zen.co.uk
Tue Jun 17 14:53:34 BST 2014
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
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
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
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."
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