• The DigitalBank Vault

Encrochat Legal Discussion : "being transmitted" or "stored in or by the telecommunication system"



The main focus of the early stages of its reasoning — paragraphs 55 to 64 — is to deal with the contention that the concept of "storage" is limited, and especially whether it is limited to storage "in a manner which enables the intended recipient to collect it or otherwise have access to it" (being the wording under RIPA 2000).


First, the court held that the issue does not require "a minute examination of the inner workings of every system in every case". The court must, however, "understand the system", and then apply the "ordinary English words" of the tests in s4(4), including the word "stored".


We do not consider that any of the previous decisions of the court assist in [deciding whether, as a matter of ordinary language, the communication was being transmitted or stored at the time of extraction]. They were all decided under different statutory regimes.

Third, the Court looked at the difference in language between RIPA 2000 and the IPA:

Section 2(7) of the 2000 Act makes it clear, among other things, that the storage which it describes can be occurring at the same time as the communication is "being transmitted". It also limits the concept of "storage" to storage "in a manner which enables the intended recipient to collect it or otherwise have access to it". Section 4(4) does not repeat this limitation, although Mr. Ryder suggested that transmission only ends when the recipient actually accesses the communication. In section 4(4), unlike section 2(7), all forms of storage are caught, whether or not they enable the intended recipient to access the communication.

In other words, the Court was unwilling to read into the Investigatory Powers Act 2016 words which Parliament had "deliberately omitted".

The Court then turned specifically to the formulation of s4(4) Investigatory Powers Act 2016.


The purpose of this provision, the Court said, was to "extend the types of storage which amount to being in "the course of transmission" so as to catch communications which are "stored" for the purposes of [the s3 offence]".


It said that:

The conjunction which connects section 4(4)(a) and 4(4)(b) is "and" not "or". The appellants' submission that the court must start with section 4(4)(a) and determine whether a message was intercepted while being transmitted and, if the answer to that is yes, cannot then go on to consider whether it was also, at the same time, being stored is simply wrong.

It goes on to say that:

It is unnecessary to add any words [to s4(4)(b)] to catch storage while the communication is being transmitted because that is necessarily caught by the plain words of the provision.

And:

[s4(4)(b)] extends to all communications which are stored on the system, whenever that might occur

And finally:

The communication is that which is transmitted. What remains on the device is not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a "draft". That is so however quickly after transmission the obtaining of the copy takes place, or even if the copy is extracted while the original encrypted communication is being transmitted.

I understand this to mean that the Court's view is that a communication can be both "stored in or by the [telecommunication' system" and "being transmitted" at the same time, such that, even if a communication is being transmitted, it may also be "stored". (If the two could not co-exist, it strikes me that an answer of "yes" to the first limb must entail a "no" to the second limb, which the Court here refuted.)


I think this means that, if a communication is available by virtue of access to a device, then it is inherently a "stored" communication, irrespective of whether a copy of it is also in the course of transmission.


I'd need to give that some further thought, and I note that the Court itself recognises that this is not a universally-held position (see paragraph 68). I'm not sure its letter/post analogy is at all helpful and, if anything, probably muddies the water further.

 

SECRECY IS PRICELESS

WWW.ENCRYGMA.COM


Offline “ Air Gapped” Super Encryption Mobile Machines.


Ultra Encrypted Text Messaging with No Cellular or Internet Connection. No Servers.


Encryption Keys generated offline by the user , never exchanged with third parties and erased permanently after each session.


More Secure than a Face To Face Meeting.


More details?


Consult with our

Cyber Defense Experts at : Info@DigitalBankVault.com






SECRECY IS PRICELESS

WWW.ENCRYGMA.COM


Offline “ Air Gapped” Super Encryption Mobile Machines.





SECRECY IS PRICELESS

WWW.ENCRYGMA.COM


Offline “ Air Gapped” Super Encryption Mobile Machines.



Full technical details:


https://www.digitalbank.capital/_files/ugd/f12fcd_7f685407960e4859b2515e9edb2bab24.pdf


Cyber War Grade, Mathematically UnCrackable, Quantum Safe, Air Gapped (Offline) Encryption Machines More details ? Click here: ENCRYGMA.com .


“ If you need to communicate top classified information or you need to store secret data and be absolutely sure that no state-sponsored hackers, no foreign Governments , no intelligence agencies will be ever able to decipher the files, you need an Above Military Level Offline SuperEncryption System” 












Cyber War Ultra Encrypted Communications.


This is an encrypted text message, that has been encrypted with an OTP cipher (quantum safe encryption- mathematically unbreakable) , on a DBV “ Air Gapped “ Offline SuperEncryption Machine. The Encrypted message is then exported from the offline device by visual means( no connections , not even physical) by scanning the QR code with an online device for then sending it safely online.


The QR code at is arrival, is scanned by the second DBV offline encryption machine , directly from the receiving online device. Afterwards , it’s deciphered safely offline. This form of super encrypted offline communications is safer than a face to face meeting .


More details? Consult with our cyber defense advisors at info@DigitalBankVault.com or visit ENCRYGMA.com.







8 views0 comments