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NTL loses key email wiretap case on appeal

NTL's legal qualms about bugging squashed

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A Law Lord yesterday brushed aside concerns from NTL that it might breach the law in complying with an email wiretap request from the police.

Police have welcomed the ruling as a step in ensuring they get access to information they need during the course of an investigation, while critics have warned of a lack of adequate checks and balances guarding against abuse.

Last year, NTL was asked by Suffolk Police to co-operate with a fraud investigation by keeping all the data and email it held relating to particular email address over a 10-day period. The data was held on a server the cable company maintained for ISP Virgin.

In a notice, NTL was warned not to "conceal, destroy, alter or dispose of" the data being sought, except with the permission of either a judge or the police.

NTL routinely destroys the content of the messages it processes and it could only override this procedure by retaining the emails of all its customers, which could lead to a breach of the Data Protection Act.

If instead it re-routed emails destined for the targeted address to another email, this might be an offence under section 1 of the Regulation of Investigatory Powers Act 2000.

Caught in this dilemma, last September NTL applied to Ipswich Crown Court for permission to destroy the data being sought. Judge Devaux refused the application, arguing that once an ISP had received notice of the police's interest, an ISP is obliged to intercept data, and no dilemma existed.

NTL appeal this decision, but the Judge's ruling was upheld by Lord Woolf, the Lord Chief Justice, who said ISPs can lawfully intercept emails once they have received notice that Police are seeking a "special production order" from the courts.

Pressure groups like Liberty have expressed concerns that this system lacks checks and balances. This, however, is not the view of the authorities.

Lord Woolf ruled that police have to justify their actions in order to get an interception order and that individual confidentiality isn't threatened because the contents of emails would only be disclosed after a judge's order. ®

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