Sunday, 27 March 2011

RIPA and read e-mails (reprise)

One aspect of the saga over whether RIPA applies to e-mails or voicemails after they have been read is the weight that has sometimes been given to Lord Woolf's comment in the R (NTL) v Ipswich Crown Court case:
"Subsection (7) has the effect of extending the time of communication until the intended recipient has collected it."
On the face of it this could lend support to the view that sub-section (7) extends the time of communication no further than collection, so that it would not be an interception to hack into stored e-mails after they have been read by the intended recipient. However, in the NTL case the e-mails were not kept for any significant time after they were read:

"NTL has a computer system which automatically stores e-mails from the relevant internet provider. In the present case those e-mails were routinely overwritten (in other words destroyed) one hour after being read by the recipient. An unread e-mail is kept for a limited period."
When Lord Woolf referred to collection, he did so against the factual background that the e-mail would be deleted shortly after reading. His comment did not address a scenario in which the e-mails were retained after reading. That context is reinforced by the full quotation:

"Subsection (7) has the effect of extending the time of communication until the intended recipient has collected it. It is essential on the evidence in this case that if NTL are to preserve the material, they take action before the intended recipient has collected the e-mail."
So it was the position before collection, not after, with which Lord Woolf was concerned.  Understood in its factual context, the NTL case sheds no light on the question of whether RIPA applies to an e-mail or voicemail after it has been read, but is still in the inbox.

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