6.
6.1
POWERS AND SAFEGUARDS
It is illegal to intercept communications, or to obtain certain information about the use
made of a telecommunications service, without the consent of the user.1 However,
Parliament has allowed a number of exceptions to this rule. This Chapter explains the
current legal basis on which public authorities may collect and analyse people’s
communications, or records of their communications. Chapter 7 describes how the
provisions set out below are implemented in practice.
Key concepts
6.2.
The basic distinction that governs the operation of the law in this area is the difference
between interception and communications data.
Interception
6.3.
Interception is the collection of communications in the course of transmission.2 RIPA
provides that an interception takes place when “contents of the communication [are
made] available while being transmitted to a person other than the sender or intended
recipient of the communication”3 The key word “content” is not defined in RIPA. Rather
RIPA defines communications data, as set out below.
Data that are not
communications data are treated as content. Interception might consist of a wiretap
on a telephone line or the gathering of emails or text messages in the course of
transmission along communications cables. It makes available to the reader the
contents of that communication and also the data relating to that communication
(related communications data).4
6.4.
RIPA s2(7) provides:
“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.”
6.5.
1
2
3
4
5
6
Therefore, perhaps surprisingly, an email is “in the course of transmission” when it is
stored on a server. That view was affirmed by a recent decision of the Court of Appeal,
which held that obtaining access to voicemails stored on a telephone is an
interception.5 As a result, certain techniques that provide access to the contents of
stored communications, such as CNE or the hacking of cloud storage systems, may
involve the interception of communications, which may be authorised by the various
statutory powers set out below.6
RIPA ss1 (1) and (2); Wireless Telegraphy Act 2006 [WTA 2006] ss48 (1) and (4).
RIPA s1(1).
RIPA s2.
See the definition of related communications data in RIPA s20.
R v Coulson and another [2013] EWCA Crim. 1026.
By way of example, CNE or hacking might be authorised under ss5 or 7 ISA 1994.
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