Consultation on change to RIP interception definition

[Peter Fairbrother]

Richard Clayton wrote:
> There is a brand new consultation from the Home Office which aims to fix
> the deficiencies in UK interception law that were identified as a result
> of the Phorm debacle...
> 
> ... viz: removing the defence of reasonably believing you have
> permission to intercept [modifying 3(1)]

I don't think that was or is the real deficiency in interception law - 
the problem is more in a lack of enforcement. However as they will 
change 3(1) no matter what the consultation says (in my experience when 
they put out a consultation they have already mostly decided what they 
are going to do), I first ask whether the proposed change makes it a 
strict liability offence?

In criminal law there is the element of "mens rea", the guilty mind, and 
in general someone with a reasonable belief that they are not doing 
something unlawful or illegal is not guilty of a crime.

They added the bit about reasonable belief to 3(1) for some reason - 
does anyone know why? Is is about strict liability or something else?

If the change doesn't make it a strict liability offence (and I wouldn't 
like to see that) but merely makes it much more the responsibility of 
the interceptor to ensure that they have permission to intercept (while 
the very occasional innocent failure would be covered by mens rea), that 
would be an acceptable change.


Even better would be a requirement (as above) on the interceptor to 
ensure he has express permission to intercept, not just implicit 
permission, and that's express permission from both parties to the 
communication. That might actually be worth changing 3(1) for, to 
something like:


1) Conduct by any person consisting in the interception of a 
communication is authorised by this section if the communication is one 
which is both—

(a) a communication sent by a person who has expressly consented to the 
interception; and

(b) a communication the intended recipient of which has expressly 
consented to the interception.


But I'm not a Parliamentary Draftsman, and there are lots of possible 
pitfalls, I don't claim to have considered them all.

For instance, should the permission be expressed directly to the 
interceptor, how obvious should it be, or how much will a general 
expressed permission do - I'd rather not have a permission hidden in a 
click-though agreement for games software allowing permission to 
intercept comms with my bank, thankyouverymuch.


> and giving the Interception of Communications Commissioner a new power
> to impose a civil penalty for intercepting without such permission [they
> think that maybe the police wouldn't be consistent -- and if BT broke
> the law again then there would be 52 parallel investigations, hmmm isn't
> this devolved so should be 47?]...

The real deficiency was and is in the lack of anyone to enforce the law 
- and the CC is the wrong person to do that, it's a criminal offence 
after all, not a civil one, and civil penalties are not appropriate. 
It's properly a Police function.

Giving the CC the power to require the Police to bring a case, or at 
least prepare a case and present to to the DPP - might be a help. 
Better, it's quite common for the Police to go up to someone and say 
"what you are doing is illegal, please stop doing it" - the CC (or 
perhaps the Information Commissioner would be better?) could take on 
that role, issuing "cease and desist" notices.

I for one am far more interested in seeing BT not doing interceptions 
than in seeing them punished for doing them.


-- Peter Fairbrother