RIPA and unread messages

An interesting comment in the Guardian today suggests that the Government may be reviewing the current definition of interception law that makes a significant legal distinction between read and unread messages. At the moment s2(1) of the Regulation of Investigatory Powers Act 2000 defines interception (which can be a criminal offence) as something that takes place while a message is "being transmitted".

In the debate on the original Bill, the Government Minister explained this by saying that a letter ceased to be "being transmitted" when it landed on the doormat - this definition is often referred to as "Lord Bassam's doormat". But it is not obvious how it applies to voicemail or e-mail. As far as I know the question has never arisen in court, but the common understanding is that an e-mail message ceases to be "in transmission" when it is read, even though IMAP or webmail services may leave it in the same mailbox.

For public bodies, such as universities and colleges, this should make little difference as "communications" are protected throughout their existence by the Human Rights Act 1998. But for the police and other investigators it has caused much complication when faced with a single folder containing some files that are covered by interception law and some that are not.

It now seems that the same issue has emerged in a case where a journalist was convicted under interception law for accessing a voicemail box. With the current definitions and understanding, such a prosecution can only succeed for messages that have not yet been listened to, even though most people would feel that both read and unread messages deserved the same protection. Clarifying the law to produce a more consistent result for both e-mail and voicemail would be welcome.