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#Encrochat: Unlawful interception



3(1) Investigatory Powers Act 2016 establishes a criminal offence of unlawful interception.


(1) A person commits an offence if—

(a) the person intentionally intercepts a communication in the course of its transmission by means of—

(i) a public telecommunication system,

(ii) a private telecommunication system, or

(iii) a public postal service,

(b) the interception is carried out in the United Kingdom, and

(c) the person does not have lawful authority to carry out the interception.


Given the primacy of the French authorities in this activity, there is a question as to whether s3(1)(b) — that any interception was "carried out in the United Kingdom" — was met. However, the Court felt it did not need to address it in detail, given the conclusion it reached on what it termed its "key question". If the Court had ruled differently, and found that the conduct in question could not be done lawfully under a targeted equipment interference warrant, this point would likely have more prominence.


Not all acts of interception amount to the offence of "unlawful interception". Leaving aside the issue that the interception must be "intentional" (not an issue discussed in the case), interception falls outside the scope of the offence if the person carrying it out has "lawful authority".


s6 defines what is "lawful authority". and the two key elements of the s6(1) definition are these:

a person has lawful authority to carry out an interception if, and only if—

(I have removed the bits about "other forms of lawful interception", and the bits about bulk powers or court orders or other statutory powers, since they are not relevant here.)


The outcome is that, if conduct is "interception", a person does it with lawful authority, and does not commit an offence of unlawful interception, if they have a TI warrant or, if the communication is a "stored communication", they have a TEI warrant.


Under s99 Investigatory Powers Act 2016, a TEI warrant authorises the interference with equipment for the purpose of obtaining communications, equipment data, and other information. "interference" is not a defined term.


A TEI warrant does not authorise in relation to a communication other than a stored communication conduct which would (unless done with lawful authority) constitute the offence of unlawful interception (s99(6)).

 

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