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EncroChat, targeted equipment interference, and the Court of Appeal

The gist of the issue before the Court of Appeal here was whether, in acquiring communications from the compromised Encrochat devices by way of the implant inserted by the French agency, the UK's National Crime Agency accessed communications which were "being transmitted", or which were "stored in or by the telecommunication system".

The more detailed description of the challenges appeal is this:

(1) The ruling that the EncroChat communications were not intercepted while they were being transmitted (within s4(4)(a) of the [Investigatory Powers Act 2016), but were intercepted while they were stored before or after transmission, (within the definition of s4(4)(b).

(2) The ruling that, in the alternative to (1), s56(2)(a), (relating to the offence under s3 of the 2016 Act), could not apply, because the interceptions were not carried out by conduct in the UK, as defined by s4(8) of the Act.

(3) The ruling that s56(2)(c), relating to the restriction on requesting mutual assistance in s10 of the Act, does not apply, because the European Investigation Order made no request that fell within s10(1)(a) or, in the alternative, the request in the EIO was the exercise of a statutory power for the purposes of s10(2A).

(4) The ruling that s56(2)(b), relating to the prohibition on an overseas authority to carry out the interception of communications imposed by s9 of the 2016 Act, did not apply because the [Joint Investigation Team]'s activity, while 'in accordance with the Targeted Equipment Interference warrant' was nevertheless not pursuant to a request by UK authorities to carry out the interception."



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