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EncroChat Legal Analysis: Practical implications for telecommunications operators

The Court's decision in terms of "storage" is interesting, and deserving of more thought. My initial reaction is that if an agency can acquire a communication by retrieving it from a user's terminal equipment, there is an argument that the communication is indeed "stored" on the terminal equipment, in the plain English sense of the term, even if only transiently. If it were not stored there, they would not be able to acquire it.

But does it follow from that that accessing a communication as it is transmitted across a packet-switched network could also be covered by a TEI warrant, on the basis that the communication is stored, very transiently, in that network element (i.e. the packets are in the element's memory)? If so, that would appear to limit the requirement for an interception warrant to interception where there is no stored copy available – for example, interception on a bearer itself (such as the interception of a radio transmission).

So transiency of "storage" as a theme for the future, perhaps.

And if the scope of a TEI warrant is as broad as this suggests, then it opens the door to interception by a broader range of organisations: TI warrantry is limited to intercepting authorities, but TEI warrants are available more broadly (see ss102-106 Investigatory Powers Act 2016).

Definitely more thinking needed.

(I am not in a position to comment on whether the Court was correct in terms of how the Court applied the law to the facts. I can see why it reached it, and also the potential for an appeal, and for a superior court to reach a different decision.)

The decision takes a broad interpretation of the circumstances in which access to communications can be carried out on the basis of TEI warrantry. It's possible that this will lead to authorities seeking to rely on TEI warrantry more frequently than in the past.

If you receive a TEI warrant, it would be worth checking it even more closely than usual, to see if the conduct being sought aligns with a more traditional interpretation of the scope of Part 5, or if the authority has obtained a warrant on a more expansive basis. This is particularly true for assistance sought from you on the basis of s126 IPA, as opposed to s128 IPA. It may also be time to push for a clearer funding model for mandatory assistance with TEI operations.

The court was at pains to point out that the limitations on storage under RIPA 2000, and which formed the basis of the Coulson decision, do not apply to the concept of "storage" under the IPA.

As such, authorities may feel empowered to rely on TEI warrantry in the context of access to hosted communications more broadly than in the past (if only because some may not have appreciated the impact of the change in regime).

More speculatively, and accepting that I may be misreading the decision, but it strikes me that the Court placed a lot of weight on the evidence of the French authorities, in terms of how the implant worked, and its effect. I wonder if a UK authority would have been afforded the same treatment, or whether a court would subject them to greater scrutiny.

If it appears that an operation led by an overseas authority receives a lesser standard of judicial scrutiny — and I do stress the if here — perhaps there will be more multi-national operations, where the "hard part" is done by the overseas authority.



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