back to article Police legal advice gives spam RIPA protection

The voicemail hacking incident is still exercising MPs – especially the Labour ones who did little to protect individual privacy during the party's decade in power (see last week’s blog). So when Assistant Commissioner John Yates of the Metropolitan Police Service (MPS) gave evidence on “Specialist Operations” to the Home …

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How to prove it has been read?

Since most voice and email systems have a function that allows a read message to be marked as unread how could any conviction under these clauses ever be obtained? Surely it would then rely on the prosecution providing evidence that this had not in fact happened. I've no idea whether the phone companies VM systems would keep these logs. Not all email systems that I have worked on log this sort of detail. Would it be possible to prove that the initial read was part of the delivery or part of an interception?

RIPA, powers given to the state? Near total. Protection given to the electorate? bog all it seems.

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Terminator

But..

But.. in general terms, unauthorised access to a computer system is an offence under the Computer Misuse Act 1990 (as amended). So, if I broke into your email system and read your messages then I would be committing an offence anyway.

Voicemail is a bit trickier - does the law interpret voicemail systems as computer systems under the meaning of the act? Obviously it *is* a computer system holding all the messages..

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Anonymous Coward

I was about to point out the same thing

(IANAL) but surely the CMA covers both emails that have been read and received and ALSO those in transmission, so why invoke the newer RIPA at all in this case? Seems to me to be a case of a law that was passed that covered things already covered by earlier laws, and also some 'interesting' items, which might be 'useful', in 'unintended' ways, such as allowing your local council to go through your bins to make sure you're recycling properly?

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Interpretation of the law, but not tested

What we seem to have here is a clever guy, being asked by the cops what he, or she (the gender of the QC not being revealed - or relevant) thinks the law might mean. They then take this as gospel and decide on that basis not to pursue anything which their chap thinks might not count.

So effectively this QC has decided what the law will be. I guess we'll never be given the chance to discover what an actual court - with real defendants, a jury an' stuff - would make of this, since the police don't seem to be inclined to present a case for their consideration.

This narrow interpretation, narrow to the point of almost making the law impossible to break, does relieve the fuzz of a lot of work. It's difficult to tell whether that's due to their avoidance of anything to do with 'pooters (such as not investigating identify theft) or simply that the law was poorly constructed.

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@Pete 2

What the QC is telling them is "If you go to court with this, the defence lawyer will argue..." and we won't have a leg to stand on.

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...simply that the law was poorly constructed

That would hardly be the first time.

I would imagine that every law has great big holes in it if you know where to look - the harder that you try to nail something down the more difficult it is to avoid catching other areas that you don't want.

If only the description of a law was restricted to a single side of A4 paper we might see some better law-making, which would hopefully be more enforceable as well.

ttfn

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Transmission

Give the QC a lesson in information theory and/or philosophy and the opinion might change: the electronic part (voice or data) is merely an intermediate between the sender's and recipient's brain - surely a message cannot be "transmitted" (past tense) until it has been "received", which can only occur when all the information content has been extracted.

E.g. I might listen to my voicemail and leave the message undeleted because I didn't take it all in on first hearing. That a message may have been displayed or listened to is no guarantee the message has been "received", and until has been it is still in the process of being transmitted and so is still protected by RIPA.

Keep everything as proof you haven't extracted all the info yet...

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Thinking aloud

What about email systems that keep the mail on a server and you read them when you feel like it. Technically I would think that as the only copy of the mail is on the server then you haven't actually received it and it is constantly in transmsission.

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Dead Vulture

RIP RIPA?

Remember that RIPA only relates to investigations carried out by public bodies, so it only kicks in if somebody accesses your inbox or voicemail in the course of an investigation. Anything else falls under the CMA (as Conrad pointed out).

RIPA's always been flimsy in terms of real public protection, when you look at it in any real detail - I'll let you draw your own conclusions there. The real question is what MPs will do about it now, given that they've found themselves in the same boat as the rest of the population...

Anon as posting from work

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re RIP RIPA?

Some of the powers under RIPA do only relate to investigations carried out by public bodies, but these are things like the Commission and appeals Tribunal. where "they" don't want some matters to be heard in open court - however the basics, like the offense of interception, apply to everyone.

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Big Brother

Not quite..

Well, not quite.. RIPA makes it an offence to intercept communications unless you are an authorised body (e.g. intelligence services), or if the subject has consented to the interception (as part of agreed employee T&Cs for example), or under certain other predefined circumstances. Any intercept that falls outside the predefined criteria is unlawful.

So RIPA could potentially apply in these circumstances.. but possibly only if you wanted to hit the offender with a double whammy of RIPA + CMA.

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FAIL

Poetic Justice!

TEN years of Labour rule demonstrate how worthless their plethora of legislation, much more than previous governments, really is.

Now the British Law books are cluttered with meaningless, police time wasting, legislation. How fitting it is that all these Members of Parliament become the victims, many of whom are actually lawyers, and really didn't bother to read the legislation they voted for rather they acted like sheep following Blair and Brown where ever they would lead them.

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Re: Poetic Justice!

Despite all the sound bites I don't see any evidence that the current coalition is in any great hurry to reverse anything. They've made a few popular noises but everything will be slowly forgotten until the next election when they will make a few more noises, get your hopes up again then if re-elected conveniently let it fall to the wayside again. If they lose they'll constantly remind you of what they would have done.

Take the McKinnon case, the Liberals in particular were wetting their pants over that and promised instant action. When the time came for that action it was suddenly not possible to do anything.

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In transmission?

What exactly do they define as 'in transmission'? Surely when you read an email that is sitting on your hard drive, after having been delivered or collected, will at some point be 'in transmission' again when it is moved from hard disk into memory? Or from memory to the screen, or from the screen to your eyes?

So for the paranoid, just turn off the 'mark as read' option... I must admit to being surprised that RIPA offers any protection at all.

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Re : transmission

I'm unsure on this point as well. I'm also not sure, from the information in this article, how the author conflates 'transmission' with 'read' - to my simple mind if I have the contents of an email (for the sake of argument I only read things actually on my machine regardless of the intermediate steps) on my machine then it has _been_ transmitted regardless of whether or not I have read it yet.

I don't think that link between transmission and read status stands up personally.

Some interesting points in the rest of it though - food for thought indeed...

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Perhaps why?

I think one of the problems quite a few people have about this is that they assume that once a communication - and please note, RIPA talks about communications, not messages or copies of messages - has been delivered or read then it can no longer be in transmission.

Traditional physical letters and documents behave like the stuff we played with as a babies - for instance they can't be in two places at the same time, or both hidden and in view - but electronic communications do not behave like those things, they can be (and frequently are) in many places at the same time, and most importantly they can have been delivered and still be in transmission at the same time.

Subsection 2(7) of RIPA is entirely clear on that point, a communication can have been transmitted and still be in transmission:

" 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. "

Once you get your head around the idea that a communication does not behave like a physical object, it's all quite simple - but some people do have extreme difficulty with it.

Was the QC simply one of those with this difficulty? I don't know, and the question is clouded by the other politico-legal issues - if read messages are not protected by RIPA then the Police can do things which they cannot legally do if read messages are so protected, and they have plenty of motivation to want to accept "legal advice" which says read messages aren't protected, even if it's clearly wrong.

Perhaps it's all in the choice of advisor. The police choose who advises them - wasn't there a recent case where they employed a very dodgy pathologist in a case where there was obvious public interest and accusations of Police misconduct, or even manslaughter, and the most competent and upright pathologist available should have been chosen?

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FAIL

@AC

You are wrong about RIPA only applying to public bodies the same tack was used by phorm et al.

Read the following

http://www.theregister.co.uk/2006/02/03/redbus_founder_denied_ripa_appeal/

or search for "Demon RIPA"

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FAIL

you have to read on

"(7)For the purposes of this section [b]the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when[ the system[/b] by means of which the communication is being, or has been, transmitted is [b]used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.[/b]"

this is several paragraphs further on from the bit the QC referred to.

This seems to suggest to me (and I'm NAL) that if the email is stored on a server, then RIPA still counts.

Maybe the QC was a bit too lazy to read the whole act?

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Same old nonsense, yet again.

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. "

That doesn't say protection stops when the message has been transmitted - it fact it says exactly the opposite. The "advice" is plainly wrong.

A suitably stored message will be in transmission for s.2 purposes (defining interception) even after it "has been, transmitted ".

This "legal advice" is strongly reminiscent of the Watkin Phorm email - self-serving nonsense. So yes, I want to see it too.

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WTF?

Am I missing something?

You aren't worried that the police have no powers to prevent and prosecute people for accessing your personal info, you're worried instead the police might want to access it?

okaaay

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Stop

Ah, but...

Keep in mind that there are degrees of reading an email. A spam filter will scan it and tell you if it's spam or not. That's extracting just a bit of the information. If you open the email, you may find the content is in an attachment. Until you open that, you've still only partly read the email. Even when it's all displayed, you may still have to scroll the screen to see all (or even any) of the content. Until you've done that, you haven't read the email.

And what if you mis-read it? People often mis-read things when in a hurry and have to return to read it properly when they discover their error. Or maybe they didn't notice the attachment, or didn't listen to all of the attached sound file?

You see? Reading an email isn't black and white. At what point does RIPA cut off?

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WTF?

This is all nonsense

If the voicemail or e-mail arrived at the destination server and the destination server has responded OK, it's been delivered. If it hasn't it's still being transmitted.

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