Mobile phone hacking and the e-Privacy Regulations

The recent furore about the News of the World and other tabloids engaging in unauthorised access voicemails I thought it might be worth pondering the potential Irish legal situation. Now, I’m not a lawyer. This post is intended to work through some of the relevant legislation and the potential issues that might arise in Irish law. It is not legal advice. I fully expect members of the Irish legal blogging community to leap in and make comments and corrections as needed.

The law

There are a few pieces of legislation in Ireland that would come into play here:

1. The Data Protection Acts 1988 and 2003
2. The Criminal Damage Act 1991
3. The Criminal Justice (Theft and Fraud Offences) Act 2001
4. The Postal and Telecommunications Services Act 1983
5. Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993
6. The ePrivacy Regulations 2011 (http://www.dataprotection.ie/documents/legal/SI336of2011.pdf)

The Data Protection Acts

The Data Protection Acts require that personal data be obtained and processed fairly.

Journalistic exemptions to this and other provisions of the Acts exist under s22A, but only insofar as there is an actual intent to publish a story or other work based on the information which has been obtained. So… if a journalist and/or a private eye in the pay of a newspaper were to obtain personal information about Celebrity A on foot of a fishing trip through the voicemails of celebrities A through F when there was no intent to publish a story about Celebrity A until such time as the information was obtained, then the journalist might not be able to rely on their exemptions under the Acts. The protection of the right to Freedom of Expression is only protected where there is an intent to actually express something, and if the publication of that story is in the Public Interest (which is a thorny topic I won’t delve into here).

Criminal Damages Act 1991 and Criminal Justice (Theft & Fraud Offences) Act 2001

Journalists who engage in unauthorised access to voicemails may also be committing an offence under the Criminal Damages Act 1991. This Act makes it an offence to access information without authorisation and to modify that information whether or not that modification has an adverse effect. Listening to a voicemail modifies the content and nature of the information (at the very minimum changing a flag from “new” to “listened to”. The Act does make use of the word “computer”, which would suggest to a lay person that it would only be an issue if a device meeting the traditional view of a computer was used. However the term is undefined and as such it is open-ended as to what type of device might meet the legal test of a “computer”. In that regard, the definition applied in the Data Protection Acts (“a device operating automatically in response to instructions”) might be relevant.

So… accessing a voice mail box (which is itself stored on a device operating automatically in response to instructions computer of some sort) without permission and listening to the recording is likely to be a criminal offence in Ireland, given the breadth of the definitions in play.

This is doubly so when the Criminal Justice (Theft and Fraud Offences) Act is taken into consideration. It provides for an offence of “dishonestly” using a computer or causing a computer to be used within the jurisdiction of the State. The big question to answer here is

• What’s a computer?
• What’s dishonest?

It might be argued that going on a fishing trip for personal data without any prior formed intent to publish a specific story about a specific individual could constitute dishonesty.

The 1983 and 1993 Acts

Section 98 of the 1983 Act deals, in the first instance, with a general prohibition on the interception of “telecommunications messages”. In short… it’s illegal except in certain defined circumstances. Interception is defined as being

“listening to, or recording by any means, or acquiring the substance or purport of, any telecommunications message without the agreement of the person on whose behalf that message is transmitted by the company and of the person intended by him to receive that message”

The term “telecommunications message” is not actually defined in the legislation, which creates an interesting situation when you consider that this Act was drafted in the early 1980s when there was no digital voice mail, no email, limited use of fax services, and (importantly) when there was only one company laying cable and connecting people to a telecommunications network in Ireland. Significantly, the 1983 Act only applies to telecommunications services which require a license… which would exclude a lot of on-line communications tools such as VOIP, web-based email or IM chat.

The 1993 Act deals essentially with phone tapping and interception of postal packets. The legislation is couched in terms suggesting that data at rest (e.g. a voice mail recording sitting on a server or an email sitting in in a mail host somewhere) may not be covered.

Digital Rights Ireland argued in 2009 that the framework in place under the 1983 and 1993 legislation most likely did not cover most on-line activities and as such there was, strictly speaking, no clear legislative prohibition on the interception of SMS, email, VOIP etc., technologies which simply did not exist at the time the legislation was being drafted and as such probably left the State falling short of their obligations under the ePrivacy Directive.

The European Commission rejected DRI’s submission at the time

Electronic Privacy Regulations

The new electronic Privacy Regulations place mobile phone operators in an interesting position with regards to phone hacking. The means by which voicemails were accessed, in the main, appears to have been default voicemail passwords being left unchanged. This is a security weakness in mobile phones and, for that matter, fixed line services which provide a voice mailbox service.

For example, for most mobile phone operators, the default password for a voicemail account is 0000. In many fixed line systems, the password might be 1234. Failing to change this password leaves the data which is being recorded in the mailbox unsecure.

The complication in Irish law for the telcos is that section 4 of the EPrivacy Regulations (SI 336 of 2011) requires providers of electronic communications services to

1. Ensure appropriate security safeguards so that data is only accessed by authorised persons, with respect to the state of the art and cost of implementing (section 4(1))
2. Ensure that the security measures can protect against accidental or unlawful destruction, accidental loss or alteration, and unauthorised or unlawful storage, processing, access or disclosure (section 4(2)(b))

Section 4(4) is the doozy I feel.

In the case of a particular risk of a breach of the security of the public communications network, the undertaking providing the publicly available electroniccommunications service shall inform its subscribers concerning such risk without delay and, where the risk lies outside the scope of the measures to betaken by the relevant service provider, any possible remedies including an indicationof the likely costs involved.

My reading of that section is that mobile phone and landline operators who apply default passwords to voicemail accounts need to be more proactive about alerting customers to the risk and, ideally,  implement a process which mitigates or eliminates the risk (such as having a randomly assigned password associated to a voicemail that is SMS’d or posted to the customer – just like bank security codes for on-line banking). I’ve asked the Data Protection Commissioner about it and it appears that my reading is, by and large, correct.

And as the SI implements an EU wide directive this could get interesting in light of the NoTW noises.

Conclusion

The world of telecommunications and person to person linking using tools like VOIP, SMS, Instant messaging, voice mail, email, and “Unified Communications” which we find ourselves in today was almost unimaginable even fifteen years ago. I can recall when I started working with a large telco in the summer of 1997 that digital voice mail was a massively new fangled thing, had you told me that I would be getting voicemails emailed to me from a virtual VOIP phone system which I could open and read or listen to on my mobile phone I’d probably have laughed.

But that is what we do every day now.

The legislation may not have kept pace. However, where the legislation has caught up, providers of telecommunications services need to do their bit to raise awareness and understanding of how the world may have outstripped the law (at least for now).

I invite any comments or corrections from more learned colleagues.