Adam Adler ( Miami, Florida) : The information recovery from the EncroChat phones was achieved with a storage warrant and not a transmission warrant.
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Defense counsel made the case that the warrants were inappropriate as the recovered data was being transmitted, as it had been copied from the phones’ DRAM and not their storage or ‘Realm’ as it was called.
This argument relied upon the transmission process including the preparation of the data being included in a message. Thus that data would be fetched from storage and copied into DRAM. There it would be used to construct a message and be formatted before being sent to the phone’s transmission hardware: radio chip and antenna. The justices ruled that “what was intercepted, was not the same as what had been transmitted because what had been transmitted was encrypted. It cannot therefore have been ‘being transmitted’ when it was intercepted: it can only have been ‘being stored’.” The ruling likened the extracted data to a “draft”.
No ‘technical terms’ in the 2016 Act
The Appeal Court justices disagreed with “expert witnesses” who explained that making a copy was part and parcel of the act of transmission, stating that while this might be true from an expert’s point of view, it was not the intent of the government when drafting the relevant Act of Parliament.
The judgment stated: “The experts have an important role in explaining how a system works, but no role whatever in construing an Act of Parliament. They appear to have assumed that because a communication appears in the RAM as an essential part of the process which results in the transmission it did so whilebeing transmitted’.
“That is an obvious error of language and analysis. It can be illustrated by considering the posting of a letter. The process involves the letter being written, put in an envelope, a stamp being attached, and then the letter being placed in the post box. Only the last act involves the letter being transmitted by a system, but all the acts are essential to that transmission.”
As the relevant Act defined only two states for data: being stored or being transmitted, then, if it was not being transmitted it was being stored.
The reasoning was as follows: Data in RAM is not being transmitted. It is necessary for it to be in DRAM for a message to be prepared for transmission, but the act of preparation is not the transmission. Therefore the data must be in a stored state and the warrant used to recover it was valid.
In other words, the common parlance meaning of storage takes precedence over the technical definition, despite the very technical issues at play.