BBC News - 'Fresh proposals' planned over cyber-monitoring

[Ben Liddicott]

On 23/05/2013 22:43, Roland Perry wrote:
> In article <519E6D76.8060203 at liddicott.com>, Ben Liddicott 
> <ben at liddicott.com> writes
> >>And if every request required the police and the telco to physically 
> >>attend court (which is likely to be some distance from the telco's 
> HQ) >>and then be required to respond to a non-urgent request in a 
> week >>rather than a month, then the costs would spiral out of control 
> (for >>all parties involved).
>>
>> Well, that's a good summary of the argument, but not actually a good 
>> reason, and it's not actually what happens.
>>
>> It's not what happens because the vast majority of such requests are 
>> for things which could perfectly well have waited to the next working 
>> day and been dealt with in bulk.
>
> Of course the vast majority can wait until the next day (or even the 
> next week), but the other aspects remain. Unless you think it's a good 
> idea for these court orders to be issued without any comment from the 
> telcos about the practicality, and any more than a rubber stamp from 
> the judge regarding the necessity.

I am really not sure what your point about "practicality" is here. I am 
sure a court order can be given in terms such as "as far as reasonably 
practicable". In any case the judges who give the orders, and the people 
who ask for them, will be well versed in what is practical. This is a 
nothing-nothing objection.

As to the rubber stamp objection: The fact that the request is seen by a 
person means that person can make enquiries either before or after 
granting the request - which makes all the difference. Who knows when a 
judge or Magistrate will suddenly decide to ask a lot of questions? They 
sometimes do, presumably just as a spot-check. Judicial review will find 
few abusive requests because abusive requests which might be made, will 
simply not be made. Even post-hoc reviews like the FISA courts will have 
that effect. But if the request will be fulfilled automatically and 
reviewed by no-one at all, ever, why not put in unnecessary, marginally 
necessary, fishing-trip, or purely abusive requests? Why not look up 
your ex-girlfriend's new boyfriend's internet habits?

Again, if it is so damn important, then it is worthwhile spending a 
twenty minutes justifying it: If there isn't time before, justify it 
afterwards. But if the request doesn't justify twenty minutes of a 
coppers' wages, why does it justify abolishing the privacy of the entire 
nation?

>> It's not a good reason firstly because there is no technical reason 
>> why a court order has to be slow. IANAL, but AFAIK a court order or 
>> warrant can be given by telephone, fax or email if need be - I don't 
>> believe there is any legal requirement for the judge to be in the 
>> same room as the petitioner - and if there is, why not just change 
>> that rule for emergencies?
>
> You seem to be wanting a special "telecoms court" to deal with these 
> things both quickly and by remote participation. The volume of 
> enquiries (which are overwhelmingly reverse-DQ) would be challenging 
> to accommodate.

It would be valuable to have an independent party see the requests - 
either before, or afterwards - and determine how many of them were 
actually justified. I suspect rather less than all of them.

> There's no DPA 1998 exemption for "life at risk/preventing injury", 
> whereas DPA 1984 had 34(8). It was also initially overlooked in RIPA 
> (I think it was amended fairly recently), because the police were only 
> able to get information if investigating a crime, and being in danger 
> isn't a crime.

Killing one's children is a crime, and that was your example.

Outside your example, suicide is no longer a crime, but I have no doubt 
whatsoever that the common-law defence of necessity would apply. I am 
not a lawyer so if you are and disagree professionally with that 
assessment please say so.