MR JUSTICE BURTON
Approved Judgment
iii)
It is also not in dispute that a Facebook message which is posted to a US
server and picked up by a recipient abroad is an external communication.
iv)
The disputes between Mr Farr (paragraphs 132 to 141) and Mr King
(paragraphs 32 to 55) revolve primarily around (i) other uses of Google, where
Mr Farr considers that a message is sent to Google or a Google entity/platform
in the United States, and a message is then sent back (ii) other uses of
Facebook – e.g. placing a message on the US Facebook page or (iii) Twitter.
In each of these cases Mr King considers that (absent the common ground
referred to above) the communications are or remain internal. It was apparent
that much of the dispute related to the difference between what is interpreted
as a “communication” within s.81 of RIPA, which includes the definition, at
(c), that communication includes “signals serving either for the impartation of
anything between persons, between a person and a thing or between things or
for the actuation or control of any apparatus.”
98.
It is clear to us that this dispute, although it is one that plainly cannot be resolved by
us on disputed witness statements, is, in the context, of very limited ambit:
i)
Of the respects in which it is common ground that external and internal
communications are either intermingled or impossible to differentiate at the
interception stage (set out in paragraphs 94 to 95 above), all were present,
foreseeable and foreseen at the time of the passage of RIPA by Parliament in
2000.
ii)
There is in any event no dispute about the communications which will be
contained on the same bearers, namely incoming communications into the
United Kingdom from abroad. They are likely to be substantial, and will
qualify as external communications, thus diminishing yet further the
proportionality of consideration of the intermingling of the outgoing
communications.
iii)
Although the changes in technology are substantial, they do not seem to us,
given the common ground to which we have referred, to constitute any
material addition to the quantity (or proportion) of communications which
either could or could not be differentiated as being internal or external at the
time of interception.
99.
Mr Eadie submits, if necessary, that he can rely upon the concept of the “always
speaking statute”, referred to by Lord Bingham of Cornhill in R (Quintavalle) v
The Health Secretary [2003] 2 AC 687, and addressed in that and the subsequent
Quintavalle case in [2005] 2 AC 561, so far as concerns the meaning of the word
external.
100.
It appears to us that there is no need to adopt that concept in order to be satisfied
that “external communications” for the purposes of s.8(4) and s.8(5) of RIPA still
mean the same and have the same effect. Even if, as is suggested, more (outgoing)
communications are external, or there is some genuine dispute, capable of being
resolved if necessary, as to its meaning in relation to some or many of such
communications, insofar as the Claimants complain of the sweep up of
telecommunications cables, that has always been the case. The same total quantity