WHERE INTERCEPTION STOPS AND DATA PROTECTION STARTS?
Professional examiners have been grappling for some months now with the task of trying to define what constitutes interception, when examining mobile 'phones. Most noticeably, the issues associated with received SMS text messages arriving after seizure or during examination, and downloading voicemail messages. There has been no shortage of takers defining what exactly an examiner can and cannot obtain and/or should or shouldn't do. It is not surprising
that currently various forces around the country implement a disparate range of ad hoc policies and procedures, which are subject to regular change. Fundamentally, the question of whether an examiner has any responsibility in this area at all appears to be largely overlooked. Significantly, it may well come down to professional examiners making a rod for their own backs by assuming responsibility and lawful duties that may actually be the burden of someone else.
Two cases that fairly recently emerged shed some very interesting light as to what the law may require in this area. Any discussion of them, here, is only by way of observation and clarification should really be sought from regional CPS departments. The first case that was kindly forwarded to me heard in April 2004 was R v X (CA 2004) concerning whether a listening device in a vehicle that recorded only one part of the mobile 'phone conversation amounted to unlawful interception. The second case United States Court of Appeals for the First Circuit No 03-1383. The latter case concerned whether emails copied, prior to receipt by the intended receiving party, by an ISP amounted to unlawful interception. Both cases may provide some assistance in those matters that currently vex professional examiners.
As an observation amalgamated from the findings in both cases, combined, they suggest it is less likely that a professional examiner would be conducting unlawful interception where text messages and voicemail are retrieved during examination. Moreover, if there is any legal issue that is more pressing, and in need of realisation, it is relevant to Data Protection. The rationale behind the observation is not made in isolation and simply based on the findings in these cases, but extends to applying the case rationale to technical realisations and implementations for mobile telephony.