https - hopefully not too stupid a question

[Francis Davey]

2012/6/18 Peter Fairbrother <zenadsl6186 at zen.co.uk>:
>
> Sadly, no.

I agree (with the "no"). What I wrote was not at all well expressed
and ended up tangling itself up and being wrong.

What is right is that the mere mention of an addressee does not make
something traffic data unless it is used by some telecommunication
system somewhere. Eg, "Francis xxxx" at the end of an email does not
constitute traffic data but...

>
> If "they" are looking at traffic between you and facebook, and that traffic
> might contain some content which might get passed on to another facebook
> user via facebook, then the possible actions of Facebook as a telecomms
> system are enough to trigger 2(5) (and therefore the looking is not
> interception), even though they are looking at traffic between you and
> facebook.

Yes. What I think you are saying is that is the effect of "is being or
may be transmitted" in 2(5). The traffic between me and facebook "is
being" transmitted by my ISP (and then over BT wires etc) but "may be"
then included for the purposes of facebook. That future possible use
makes it "traffic data" and reading it not interception.

But if I write in my email "please (orally) tell X" then that further
transmission won't be via a telecommunications system because it
doesn't use electromagnetic energy (at least not as understood by the
sort of normal unpedantic people assumed to read statutes) and so is
not using a telecommunications service.

Have I understood you right?

>
> And even if there is no actual "hidden message".
>
> It's not just the traffic between you and facebook, it's also the possible
> use of the facebook system. If a "hidden message" *might* be sent on via
> facebook, that's enough

Yes, that's the "may" as you say:

>
> The relevant part is: "comprised in or attached to a communication (whether
> by the sender or otherwise) for the purposes of any postal service or
> telecommunication system by means of which it is being *or may be*
> transmitted"
>
>
> Also sadly, you can't parse RIPA 2(5)(a):
>
> "(a)any conduct that takes place .. for the purposes of any postal service
> or telecommunication system by means of which it is being or may be
> transmitted;"

No, the ellipsis ins in the wrong place. I meant to remove "(whether
by the sender or otherwise)" but snipped too much.

>
> which would be a lot better (and which would make a lot more sense).
>
>
> But there's more, and perhaps worse. 1(4) of the draft Act, which says
> "Nothing in this Part authorises any conduct consisting in the interception
> of communications .." only covers part 1 - and not part 2, where all the
> filtering stuff is.

Ah, here I don't think you have it right.

All the disclosures from telecommunications operators and providers to
the authorities go via authorisations. Clause 9(5) restricts an
authorisation so that it "may not authorise any conduct consisting in
the interception of communications in the course of their transmission
by means of a telecommunication system".

Unlike the Part II RIPA scheme where the designated senior officer
gave a notice to the operator, under clause 9 it is authorised
officers who give notice *under* a pre-existing authorisation, so they
have no power to obtain data contrary to 9(5).

As to the filtering, I don't believe that there are any substantive
powers to obtain data in the filtering arrangements. "All" they do is
permit the secretary of state to do things. As I said in my analysis,
I think this is about making sure the minister doesn't act ultra
vires, rather than giving them additional powers. Its not entirely
clear, but I would expect a power to obtain data or force ISP's to run
monitoring devices to be very clearly given.

So, it seems to me that the minister's powers to obtain the data
necessary to carry out the filtering are all in clause 1, which is
limited as you describe.

-- 
Francis Davey