The difficulty of distinguishing between external and internal communications

Since the routing of the Internet does not conform to national boundaries, a communication between two people in the UK may travel on ISP’s in foreign countries and be carried on an overseas cable that lands in the UK. The parties in the Liberty et al challenge before the IPT agreed that “[i]t is impossible to differentiate at the ‘interception’ stage between external and internal communications, which will all be carried within the same bearer [on an international fiber optic cable].” December 5 Judgment, para. 94(i). In addition, since the same mobile telephone number or email address may be used in the UK or abroad, at the time of interception, it is impossible to know whether a communication is “external” or “internal.”

As indicated above, s.8(4) of RIPA provides that untargeted warrants may only be used for “external” communications. Accordingly, an issue before the IPT was whether the “difficulty of distinguishing between external and internal communications” meant that the s.8(4) regime violated the requirement of Article 8(2) of the ECHR that any interference with privacy be in “accordance with the law.” Id., para. 80.    

The IPT distinguished “Stage one” of interception in which telecommunications are obtained and recorded from the subsequent application of selection criterion to determine which telecommunications will “be read, looked at or listened to by a person.” Id. at paras. 62, 101. On that basis, the IPT ruled that “the ‘heavy lifting’” was done by the provisions in s.16 of RIPA for the selection of communications for examination. Id., para. 101. The 8(4) regime could satisfy the “accordance with the law” requirement of the ECHR, despite the impossibility of distinguishing between “internal” and “external” communications at the interception stage, if s.16 adequately protected “internal communications” from examination.

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