Written evidence submitted by Amberhawk
Training Ltd
Recommendation:
The Committee (possibly with the assistance of the Interception
of Communications Commissioner) needs to explore the consequences
of the MPS legal advice (as mentioned in Q5 of Mr Yates' comments)
in relation to a review of the protection afforded to individuals
by the Regulation of Investigatory Powers Act 2000 (RIPA).
If the arguments underpinning the MPS legal advice,
then a change to RIPA might need to be urgently recommended. When
Parliament provided public authorities with intercepting powers
in 1999, Parliament had in mind the protection of all
messages - not just the content of the unread
ones.
ARGUMENT
I refer to the evidence given by Assistant Commissioner
John Yates of the Metropolitan Police Service (MPS).
Mr Yates' answer to Q5 reveals that the MPS have
obtained legal advice from a leading QC which, if applied in practice,
has some strange consequences. For example, it could mean that
unread spam messages receive a high level of privacy protection
under the Regulation of Investigatory Powers Act (RIPA) whereas
read private email messages of immense confidentiality
do not receive any privacy protection from RIPA.
In relation to the incidence of "voice mail
hacking", Mr Yates said the following:
Mr Yates: "....
hacking is defined in a very prescriptive way by the Regulation
of Investigatory Powers Act and it's very, very prescriptive and
it's very difficult to prove.... There are very few offences that
we are able to actually prove that have been hacked. That is,
intercepting the voicemail prior to
the owner of that voicemail intercepting it him or herself".[1]
Note my emphasis on "prior
to the owner of that voicemail intercepting it him or herself"?
The question that needs to be asked is: "What does that imply?".
Consider the relevant provisions of RIPA and its
definition of interception. Section 2(2) of RIPA states that "....a
person intercepts a communication in the course of its transmission
by means of a telecommunication system if, and only if ... (he
makes) ...some or all of the contents of the communication available,
while being transmitted,
to a person other than the sender or intended recipient of the
communication". Section 2(4) states that an "interception
of a communication" has also to be "in
the course of its transmission"
by any public or private telecommunications system (my emphasis).
I had not appreciated the significance of "in
the course of its transmission" or "while being transmitted"
until now - but John Yates' testimony has put an end to that.
What Mr Yates appears to be telling the Home Affairs Committee
is that the MPS legal advice states that once the lawful recipients
have read or listened to their Inbox messages, there can be no
interception in connection with those messages. The RIPA offence
falls away because each read message "has
been transmitted" rather than
"is being transmitted".
In most email Inboxes there will be all sorts of
messages, some of which will no doubt left unread (eg spam in
a "Deleted Items" folder), and some of which will be
read and retained (eg mailings from constituents). If the MPS
advice is followed, those unread
spam messages gain the full
protection of RIPA whereas those messages that you have read
do not. In this way, the MPS legal advice appears to imply that
RIPA provides a very a topsy-turvy world of protection.
However, there is a more serious side to the MPS
legal advice. If it is correct, then any claim that RIPA provides
a high level of protection against the misuse of RIPA powers by
law enforcement agencies could easily be misplaced. For instance,
suppose the law enforcement agencies wanted to gain access to
the content of an email Inbox: in relation to the content of read
messages, there would be no interference, and there would be no
need to obtain a warrant, because RIPA is not even engaged. RIPA's
warrant provisions only cover unread
messages.
It is for this reason that the arguments underpinning
the MPS legal advice have to be obtained in full by the Committee.
Mr Yates' comments on RIPA cannot be left to gather dust. If that
advice is correct, then Parliament may need to call for a change
in the law. When Parliament provided certain public authorities
with intercepting powers in 1999, Parliament had in mind the content
of all messages
- not just the unread
ones.
September 2010
1 Oral evidence taken before the Home Affairs Committee
on 7 September 2010, HC (2010-11) 441-i, Q 5. Back
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