MR JUSTICE BURTON
Approved Judgment
arrived but is being stored pending collection by the intended recipient
– e.g. stored on an email server.
iii)
It is inevitable that, when a telephone call is made from a mobile phone or
IPhone, or an email is sent to an email address, it will not necessarily be
known whether it will be received in the United Kingdom or in the course of
travel or at a foreign destination. It is accepted that once and if received
abroad by the intended recipient it will be an external communication, even if
the sender did not know, when he or she made the call or sent the email, that
that was to be the case.
95.
It is also common ground that the interception under a s.8(4) warrant (what the
Respondents call “Stage one”) occurs before any question of selection for
examination (what the Respondents call “Stage two”) arises under s.16. As Mr
Ryder put it, the relevance of the internal/external distinction has no relation to the
s.16 examination, when a communication may be accessed and read. The
identification of communication links for interception is, as he described it, a
‘generic’ exercise, not an exercise which is done specifically case by case and
communication by communication.
96.
This is the context of the Claimants’ case, namely that there has been a sea-change
in technology since 2000 which means that, by virtue of the blurring of the
distinction between external and internal communications, s.8(4) is no longer, as
the ugly phrase has it, based upon a misquotation of the Sale of Goods Act, ‘fit for
purpose’. The background upon which the Claimants rely is that there are (as is
obviously the case) many more emails and other similar communications since 2000
(and certainly less landline communications), and that, in addition, there are highly
developed and greatly used new forms of communication through Facebook,
Twitter and Google, in its various facets. They submit that, given that the servers,
particularly for Facebook and Google, are likely to be in the United States, there is
likely to be substantially more external communication than there was in 2000,
particularly so by virtue of what he submits to be an incorrect interpretation of what
is an external communication adopted by Mr Farr and disputed by Mr Eric King, the
Deputy Director of Privacy, who has also filed a witness statement.
97.
It is necessary to indicate the ambit of this dispute:
i)
There is no dispute that emails sent to an email address will still be likely to be
in transmission when intercepted (see above). There is also no dispute that if
an email is sent to more than one addressee, and one of the addressees is
abroad, then there is an external communication to that addressee, even if not
to the others. It is also not disputed, in accordance with Lord Bassam’s
statement and the Code, that if an email is sent via a server which is abroad,
such as Hotmail, that that is not an external communication if the addressee
receives it in the UK, irrespective of the fact that it has been transmitted to,
and stored, until called down, on a US server.
ii)
It is also not disputed that if Google is used as a search engine to navigate the
internet in order to find a web page or addressee abroad, for example such as
Wikipedia, then, if e.g. Wikipedia is abroad, that is external.