Accidental Interception

The Regulation of Investigatory Powers (Monetary Penalties and Consents for Interceptions) Regulations 2011 are now in force. These make two changes to the Regulation of Investigatory Powers Act 2000:

• Creating monetary penalty notices (in effect fines, but imposed by a regulator rather than the courts) for unlawful interceptions of public communications networks that are unintentional (intentional interceptions are already subject to fines and imprisonment under RIPA) (Regulation 2);
• A change to rules on interception where the user has given consent: this used to be lawful if the interceptor reasonably believed that a user had given their consent, but now requires that a particular user actually has consented (Regulation 3).

As I noted in our response to the consultation on these changes, there are practical problems with both of them. Removing the requirement for "intention" from the definition of interception seems to bring a number of quite legitimate actions within scope. Requiring actual consent seems to make that justification for interception essentially unusable, since actual consent (unlike a "reasonable belief in consent") goes away as soon as one user passes their keyboard to someone else.

These interpretive issues are likely to be worked out on public networks (the unintentional interception provisions only apply to those). It will be interesting to see what impact they have.