message to “friends” on Facebook to be “external” because Facebook is a
“platform”.87 This categorisation holds true even if that message was
traveling between two “friends” based in the same city in the UK.
142.
The
Government’s revelation
contradicts
the
assurance
given
in
Parliament during debates on RIPA and the explanation in the Code of
Practice that “external communications…do not include communications
both sent and received in the British Islands, even if they pass outside the
British Islands en route”.88 At the same time, it remains unclear what
other online services falls within the Government’s definition of a
“platform”, such that messages exchanged on it would be deemed external.
The term “platform” appears nowhere in RIPA or in the Code of Practice.
143.
Unsurprisingly, the ISC Report found, in March 2015 that, “[t]he current
legal framework of external and internal communications has led to much
confusion” and “lacks transparency”.89 It concluded that “[t]he Government
must publish an explanation of which internet communications fall under
which category, and ensure that this includes a clear and comprehensive
list of communications.”90 The Government has not done so.
144.
The Independent Reviewer similarly noted, in his June 2015 report that
“the distinction” between internal and external communications “is
outdated in the context of internet communications and should be
abandoned.”91
145.
The Government rejects these conclusions. It reiterates that “when a
communication…is placed on a web-based platform such as Facebook or
Twitter, the communications will be external if the server in question…is
outside the British Islands.” (Observations, §4.69). But this is a
Farr Witness Statement, paras 133-141.
Code of Practice, para 6.5.
89 ISC Report, pp 2, 113, para O.
90 ISC Report, p 113, para O.
91 A Question of Trust, para 14.76.
87
88
56