The case involved Suffolk police and ISP ntl. Ntl had received
notification from police that they were applying for access to all
information relating to a particular e-mail address over a 10-day
period, stored in the company’s electronic retrieval systems.
The notification warned ntl, which maintained a server for ISP
Virgin, that it should not “conceal, destroy, alter or dispose of”
the material involved, except with judicial or police
permission.
The company’s systems automatically destroy e-mails shortly
after they have been accessed by the recipient. The only way to
keep the information sought would be to intercept e-mails. Ntl
argued that compliance with the notice would infringe the
Regulation of Investigatory Powers Act of 2000 (RIPA) and applied
to the Crown Court for permission to delete or dispose the
electronic data in question.
The court rejected the application, saying that the interception
and retention of the e-mails was lawful. This is because the police
notified ntl that they were applying for a special production order
under the 1984 Police and Criminal Evidence Act (PACE). Therefore,
ntl had implicit “lawful authority” to intercept and retain the
e-mails.
The High Court decision said: “If [ntl] was not in a position to
take that action without committing an offence, it would mean that
the [PACE provisions] would be almost totally worthless.”
Fiona Caskey, an information and technology lawyer with Masons,
the firm behind OUT-LAW.COM, said:
“This further illustrates the trend towards
erosion of privacy, allowing as it does implicit powers to
override explicit provisions which make it an offence to intercept
communications. It creates further uncertainty for organisations in
interpreting RIPA, which has been widely criticised in the two
years since it came into force.
“It is not hard to see how similar arguments
might be run in relation to the Data Protection Act, under which a
statutory power provides lawful grounds for processing personal
data. It has generally been assumed to date that organisations
would require an explicit statutory power to be able to
rely on this ground for lawful processing."
