Doormat-ologist needed

[Peter Fairbrother]

Peter Fairbrother wrote:
> Caspar Bowden (travelling private e-mail) wrote:
>> Doormat-ologists' opinion please of:
>>
>> http://www.guardian.co.uk/media/2010/sep/07/phone-hacking-voicemails-law-int 
>>
>>  erception .Addressing the home affairs select committee today John
>> Yates, the assistant Metropolitan police commissioner, repeated
>> earlier claims by police that cases of hacking into voicemails could
>> only be prosecuted if the victim had not yet listened to their
>> messages.
>>
>> "That is nonsense, and a recurring problem with this police position
>> in this case," said Simon McKay, author of Covert Policing Law &
>> Practice. "The police are getting confused about a number of things
>> relating to the evidential status of a voicemail. "The law is that in
>> the nanosecond between someone's voice being converted into an
>> electromagnetic system and being transmitted to the recipient who 
>> listens to the voicemail, that's the course of transmission. At some
>> point between these two points the hacker has been diverting a copy
>> for his own use, and that is an offence."
>>
>> Experts say that although the law under the Regulation of
>> Investigatory Powers Act 2000 (Ripa), which governs the interception
>> of phone communications, is complex, draft government guidelines
>> clarify the illegality of hacking into voicemails. Those guidelines
>> on the use of the act states that it is illegal to intercept
>> communications "at any time when the communication is being stored on
>> the communication system in such a way as to enable the intended 
>> recipient to have access to it", which experts say includes
>> voicemails.
> 
> That last paragraph sounds right - although it's straightforward law, 
> not guidelines.
> 
> RIPA section 2(2) says that an interception can only be of a 
> communication "while being transmitted". Section 2(7) says:
> 
> " For the purposes of this section the times while a communication is 
> being transmitted by means of a telecommunication system shall be taken 
> to include any time when the system by means of which the communication 
> is being, or has been, transmitted is used for storing it in a manner 
> that enables the intended recipient to collect it or otherwise to have 
> access to it. "
> 
> Clearly when a voicemail is stored in eg BT's system it is being stored 
> so that the recipient can have access to it. It is therefore in 
> transmission.
> 
> Whether the recipient has collected it, or listened to it, is irrelevant 
> - it is still being stored so that the recipient can have access to it.
> 
> 
> 
> 
> 
> I don't know the detailed grounds behind the Police's attitude, they 
> ain't saying, but afaict it would have to directly contradict the above 
> somehow, and I cannot see any way the above could be incorrect.
> 
> 
> 
> An apparent difficulty may arise when the storage device is eg an 
> answering machine in the recipient's house, which is not obviously and 
> unambiguously part of the system as defined. However the difficulty is 
> only apparent, not real.
> 
> At some point the answering machine was used to transmit the message, 
> and thus was undoubtedly part of some telecommunications system at that 
> time. The question arises, is it still part of the system "by means of 
> which the communication is being, or has been, transmitted".
> 
> Even if it's only part of a system by which the communication "has been" 
> transmitted, if it's being used to store the communication so that the 
> recipient can access it then the communications it contains are to be 
> considered as being "in transmission" as far as section 2 of RIPA are 
> concerned.
> 
> 
> RIPA makes no mention whatsoever of whether a communication has been 
> received or read as having anything to do with whether or not it is in 
> transmission.
> 
> So lets extend this a bit, to messages and texts in a mobile phone - 
> they are "in transmission". Also, emails in seized computers - again, 
> whether they have been read or not is irrelevant, and as long as they 
> are in eg the inbox they are to be considered to be in transmission.
> 
> As the Police regularly look at texts when they seize mobiles, and 
> emails when they seize computers, they aren't too keen on the correct 
> interpretation of the law - properly, they need a PACE warrant to look 
> at them.
> 
> 
>> "I don't know where the police are getting this interpretation from,"
>> a senior lawyer close to the case said. "It's well known that Ripa is
>> not the clearest piece of legislation, but these guidelines seem
>> pretty clear."
> 
> 
> For a guide to Parliament's intentions, and possibly the guidelines 
> referred to, see this from the HO's explanatory notes, at
> 
> http://www.publications.parliament.uk/pa/cm199900/cmbills/064/en/00064x--.htm 
> 
> 
> [...] where an existing statutory power is used in order to obtain 
> stored communications. In the latter case, this covers circumstances 
> such as where a person has been arrested in possession of a pager, and 
> the police have reason to believe that the messages sent previously to 
> that pager may be of assistance in the case. In this case they would be 
> able to apply to seek from a circuit judge an order under Schedule 1 to 
> the Police and Criminal Evidence Act 1984 for the stored data to be 
> produced.
> 
> The section being discussed removes acts which would otherwise be 
> interception from the scope of the definition in s.2 if they are covered 
> by existing powers to access stored communications.

ooops, had a niggle about that, and had to look it up. To be accurate, 
the section in question (s.5(3)) makes looking at pager messages lawful, 
under RIPA and eg PACE, rather than making it not an interception under 
RIPA.

So looking at pager messages is interception, it's just not illegal if 
done under eg a PACE warrant. nothing I have seen suggests that whether 
they have been read or not makes any difference.

-- pf


> 
> The example given is of a seized pager - the section provides that 
> looking at the messages on it is not interception because of the 
> section, and we must conclude that looking at messages would in fact be 
> interception absent the section - else why include the section?
> 
>>
>> The Crown Prosecution Service said that it stood by its
>> interpretation of the law, which it gave during evidence to the
>> culture, media and sport select committee in July 2009.
>>
>> "We stand by what we said to the committee and do not wish to add to
>> it except to say that in bringing the prosecution we interpreted the
>> relevant law following careful consideration and advice from very
>> experienced counsel," a CPS spokesperson said.
> 
> Very experienced at spin, and making up law to suit themself/their 
> clients - like the Watkin memo - I suspect. I'd like to read that 
> guidance ..
> 
> 
> The following threads here from Jan and Feb have some more detail, but 
> the above is basically it:
> 
> "Google Toolbar caught tracking users when 'disabled'",
> 
> "Lord Bassam's Doormat - was Re: Google Toolbar caught tracking    users 
> when 'disabled'" and
> 
> "Reading already read messages to become interception"
> 
> I don't know how to provide links to the archives, sorry.
> 
> 
> 
> 
> -- Peter Fairbrother
> 
>