Doormat argument about Voicemail dismissed by Court of Appeal

[Peter Fairbrother]

On 30/06/13 14:59, Igor Mozolevsky wrote:
> On 30 June 2013 14:48, Jon Ribbens<jon+ukcrypto at unequivocal.co.uk>  wrote:
>> On Fri, Jun 28, 2013 at 12:22:12PM +0100, Ian Batten wrote:
>>> http://www.guardian.co.uk/uk/2013/jun/28/rebekah-brooks-andy-coulson-phone-hacking
>>>> They argued that the words used in RIPA "do not extend to cover
>>>> voicemail messages once they have been accessed by the intended
>>>> recipient".
>>>>
>>>> In their judgment, the three judges ruled: "Contrary to the legal
>>>> submission on behalf of the appellants, the resulting situation is
>>>> not lacking in legal certainty".
>>
>> The Guardian's reporting is rather misleading there. That quote from
>> the judgement is not related to the "doormat" argument quoted in the
>> previous paragraph.


Maybe it is, at least somewhat, if you accept (my) interpretation of 
"doormat" as being something outside the system used to transmit the 
communication - the copy of the communication on the doormat is no 
longer in the system, as it's in a place outside the system used to 
transmit the communication.


Of course a doormat may be inside the system - eg in a block of flats, 
where the table the mail for all the flats is placed on, or the 
concierge, is part of a private system attached to the public system 
(and thus part of the overall system).

And my doormat is outside my door, not inside - but nevermind :)


> The full judgment is on Bailii btw:
> http://www.bailii.org/ew/cases/EWCA/Crim/2013/1026.html

Thanks for the reference.


Couple of points arising - first, " 11: The Crown does not maintain that 
the course of transmission necessarily includes all periods during which 
the transmission system stores the communication. "

I sort-of think it does, or at least the circumstances in which the 
communication should be protected against "listening, tapping, storage 
or other kinds of interception or surveillance" include all times when 
the system stores the communication - but as that issue wasn't 
addressed, and practical instances where it might matter are few and far 
between, I'll just point that out.



Second,  Article 5(1) of the 2002 EU directive:

" Member States shall ensure the confidentiality of communications and 
the related traffic data by means of a public communications network and 
publicly available electronic communications services, through national 
legislation. In particular, they shall prohibit listening, tapping, 
storage or other kinds of interception or surveillance of communications 
and the related traffic data by persons other than users, without the 
consent of the users concerned, except when legally authorised to do so 
in accordance with Article 15(1). "


Is there some UK law which prevents "listening, tapping, storage or 
other kinds of interception or surveillance of [..] the related traffic 
data" ?

RIPA part 1 says doing things to or with traffic data isn't interception 
- does that comply with the directive? -  and part 2 says that there are 
lawful ways for Plod etc to access that data - but is there a general 
proscription against Jimmy Gumshoe getting hold of traffic data?

Where?

DPA (ahem)?




To get back to email, it's now entirely clear that if it is on your 
ISP's servers and available to you, it is "in transmission" whether you 
have downloaded it or not. We always thought so, but it's clear now.

I personally think an email is also "in transmission" if it is stored 
there and not available to you - and it should be subject to Article 
5(1) of the 2002 Directive - but that's a matter I won't go into.

BTW, some IPSs delete email when downloaded, some keep it available for 
a set period unless manually deleted - the Court didn't seem to know that.




The question then arises, where does the system end? Is your 
computer/blackberry/email program part of the system?

As you couldn't receive the communication without them, I think they 
have to be part of the public communications system when the 
communication is being received.

But do they remain part of the system at other times? When?

I think they always do, but afaict the judgement doesn't go anywhere 
near that issue.



-- Peter Fairbrother