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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.


[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.



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