Feeds

RIPA to be changed to demand full consent to monitoring

UK drafts new amendments after accusations from EU of poor Phorm

Maximizing your infrastructure through virtualization

It will no longer be enough to have "reasonable grounds" to believe that someone had consented to monitoring of their communications under changes to the Regulation of Investigatory Powers Act (RIPA) proposed by the Government.

Putting notice of monitoring in terms and conditions will not be enough to count as consent to that monitoring, the Home Office said. Its plans to change RIPA will mean that it will only be legal to intrude on private communications if you have a warrant or both the sender and recipient of information agree that it is acceptable, even if it is done unintentionally.

RIPA previously stated that, without a warrant, you only needed to prove there was "reasonable grounds" to accept consent had been given to allow communications to be intercepted.

"The changes to 'consent' touch on interception that may be lawful without a warrant. Communication service providers may lawfully intercept in accordance with ... RIPA, for example to manage their networks... Where businesses choose to carry out interception to provide value added services, which are at the discretion of service providers ... RIPA requires the consent of both the sender and the intended recipient of the intercepted communication," the Home Office said in its consultation summary on the issue (three-page/17KB PDF).

New powers would also been given to the Interception of Communications Commissioner (IoCC) that grant the IoCC the authority to impose fines of up to £50,000 for unlawful interceptions, the draft Regulation of Investigatory Powers (Monetary Penalty Notice and Consents for Interceptions) Regulations said.

"The Interception of Communications Commissioner may serve a monetary penalty notice on a person if the Commissioner considers that a person has without lawful authority intercepted, at any place in the United Kingdom, any communication in the course of its transmission by means of a public telecommunications system and was not, at the time of the interception, making an attempt to act in accordance with an interception warrant which might, in the opinion of the Commissioner, explain the interception concerned," the draft regulations state (11-page/136KB PDF).

The penalty would be a marked increase on the £10,000 maximum fine that the Home Office suggested when it launched its consultation. It said that respondents had submitted concerns that a £10,000 fine would be inadequate.

"The scope of the sanction will not be limited to CSPs (Communication Service Providers). Any person undertaking unintentional unlawful interception will now be within scope of the offence," the Home Office said in its summary.

The stiffer wording and penalties in the document have been included in the hope that it will appease the European Commission that had previously stated that the UK had failed to properly implement the EU's Privacy and Electronic Communications Directive into national law.

Last year the Commission referred the UK to the European Court of Justice (ECJ) citing concerns that UK laws did not adequately protect against intrusion into personal privacy.

The Commission's decision was prompted by complaints it had received from BT customers after it conducted unannounced targeted advert trials through a software company, Phorm. Phorm used its technology to intercept and monitor the web activity of BT customers to help match adverts to the interests of users.

Earlier this month the Crown Prosecution Service said that it would not launch a case against BT and Phorm as there was not enough evidence to convict.

The UK Home Office proposed amendments to RIPA in November in an attempt to address the Commission's concerns. It has now published a summary of its responses along with the draft regulations.

There is "strong favour" within the 39 consultation respondents for the adoption of "unambiguous" measures for users to have to grant consent before companies can intrude on their communications, the Home Office consultation summary said.

"Many argued that including relevant information within general terms and conditions or privacy policies does not allow for a sufficient expression of consent," it said.

Members of Parliament will now discuss the draft regulations.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Application security programs and practises

More from The Register

next story
UK.gov's Open Source switch WON'T get rid of Microsoft, y'know
What do you mean, we've ditched Redmond in favour of IBM?!
UK government officially adopts Open Document Format
Microsoft insurgency fails, earns snarky remark from UK digital services head
Major problems beset UK ISP filth filters: But it's OK, nobody uses them
It's almost as though pr0n was actually rather popular
US Social Security 'wasted $300 million on an IT BOONDOGGLE'
Scrutiny committee bods probe derailed database project
HP, Microsoft prove it again: Big Business doesn't create jobs
SMEs get lip service - what they need is dinner at the Club
ITC: Seagate and LSI can infringe Realtek patents because Realtek isn't in the US
Land of the (get off scot) free, when it's a foreign owner
Arrr: Freetard-bothering Digital Economy Act tied up, thrown in the hold
Ministry of Fun confirms: Yes, we're busy doing nothing
Australia floats website blocks and ISP liability to stop copyright thieves
Big Content could get the right to order ISPs to stop traffic
Help yourself to anyone's photos FOR FREE, suggests UK.gov
Copyright law reforms will keep m'learned friends busy
prev story

Whitepapers

Top three mobile application threats
Prevent sensitive data leakage over insecure channels or stolen mobile devices.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Top 8 considerations to enable and simplify mobility
In this whitepaper learn how to successfully add mobile capabilities simply and cost effectively.
Application security programs and practises
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
The Essential Guide to IT Transformation
ServiceNow discusses three IT transformations that can help CIO's automate IT services to transform IT and the enterprise.