On the Met/NotW link

[bellinghman]

Reading this BBC article, it does sound as though senior Scotland Yard ossifer John Yates is looking at the end of his career. He's thus far denying covering up the worst of the news International privacy hacking allegations, but in doing so, he has come directly into conflict with the Crown Prosecution Service as to what advice they gave him at the time.

The advice basically was whether it was an offence at all to hack into a voice-mail box if there were no unheard messages within. Yates rather astonishingly says he was told that the hacking per se was not illegal unless the hacker listened to messages that the owner themself hadn't yet heard.

So, the prosecution would have to prove that there were unheard messages, and since that could be difficult, a prosecution could not be guaranteed.

Now, I'm not a lawyer, but I rather feel that this is one of those cases where the court would rather assume that the hacker had, in getting access, had the opportunity to listen to messages, and that it would then be for the hacker to prove that he did not hear any fresh messages, rather than for the prosecution to prove that he did.

In other words, if Yates had been doing his best to avoid having to prosecute, this is the sort of argument he might have used to justify such avoidance.

I do rather think that someone, somewhere, should have written something down.

Oh dearie me, I think I need more popcorn.

Comments

[major-clanger.livejournal.com]

Someone appears to have been labouring under a misapprehension as to how the Regulation of Interceptory Powers Act 2000 works, whereas this whole issue goes away if you view hacking into a phone system as an offence under the Computer Misuse Act 1990.

People don't think of a voicemail system as a computer. But it is one.

[drplokta]

As are most modern cameras, telephones, washing machines, ovens, etc. Officious security guard deleted a picture from your camera? He's a computer hacker, and can be prosecuted as such.

[major-clanger.livejournal.com]

As I have already noted.

[martyn44.livejournal.com]

Well, I am a lawyer (of sorts) and I have to say that Yates' excuses had me scratching my head, thinking WTF? It goes against just about everything I know. On the other hand (see, I told you I was a lawyer, of sorts) this is an area where the spooks have arrogated so many powers to themselves lately that it may well be true.

That said, I'm having problems getting away from my conviction that he's a lying little shit and, hopefully, the repercussions might even bring down Papa Dave.

[tisiphone.livejournal.com]

That... makes absolutely no damn sense. It's just as illegal for the cops to break into your house and rummage through the open mail on your desk as it is for them to take it out of your mailbox before you've looked at it. Why would voicemail be any different?

[bellinghman.livejournal.com]

That's how I would take it, too. My understanding of the applicable point of law is that it's to do with interception of communication, and that once a communication has reached its intended recipient, it is by definition too late to intercept it.

The analogy here then is not of breaking into your house, but of going through your waste bins looking for letters that you have read.

No, that's not how anyone sane would consider a voicemail system. Yes, electronic communications and law aren't entirely in phase yet.

[tisiphone.livejournal.com]

Then the question is, if you've saved the voicemail have you really discarded it, or is it still sitting on your desk? I'm afraid I think the metaphor is faulty here. Indeed, the law hasn't quite caught up (with an "innovation" that's been with us 30 years...)

[major-clanger.livejournal.com]

The problem seems to have arisen because the Met assumed that RIPA 2000 was the appropriate legislation, and sure enough section 1 makes it an offence to intercept a communication in the course of transmission. However, 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.

It seems that the Met interpreted this as meaning that a voicemail was only 'in the course of transmission' before it had been collected. But if you read that provision carefully, it clearly says 'any time' and 'or otherwise to have access to it'. So, properly construed, it's an offence to intercept a voicemail at any time that it is still sitting on the system. However, the Met didn't get proper legal advice on this until much later. (I will quietly grumble to myself about how nobody consults specialist IT lawyers until too late...)

[major-clanger.livejournal.com]

Just to clarify: it wasn't alleged that the police were intercepting the messages. Rather, the police excuse for not charging the reporters involved was that they didn't think it was an offence under the relevant law (RIPA 2000). As I've noted, (a) they were probably wrong, and (b) there was another law that would definitely have applied.