members of the public satisfactorily.”85
138.
Moreover, the key arrangements pertaining to RIPA safeguards
under ss 15 and 16 remain secret and unavailable to the public.
1.
“Internal” versus “external” communications
139.
A key element of the lack of foreseeability of the s8(4) Regime is the lack of
clarity concerning definition and scope of “external” communications.
Section 20 of RIPA defines an
“external communication” as “a
communication sent or received outside the British Islands”. The practical
application of that definition in the modern communications context –
where a message between two individuals based in London might
circumnavigate the world – has rendered the application of the s8(4)
Regime arbitrary and unforeseeable.
140.
The concept of an “external communication” was criticised from the
inception of RIPA. During the parliamentary debates on what became
section 20 RIPA, Lord Phillips of Sudbury said that, "the meaning of the
word 'external' is not clear". In particular, he expressed concern as to
whether or not a communication between two people within the British
Islands, but which was routed through outside the British Islands,
constituted an external communication. He was assured in Parliament it
did not.86
141.
However, the Farr Witness Statement sets out what the Government
considered to be an “external” communication as applied to modern
internet communications. In particular, the Government disclosed that it
distinguished
between
emails
and other
forms
of
internet-based
communications. It explained, for example, that it always considers a
85
86
See paras 108-115.
Hansard, 19 June 2000, HL Deb (2000), vol. 614, cc. 97-146, col. 98 (UK). Reply Annex No. 2.
55