Duncan Campbell and Dr Ian Brown were the only computer forensic expert witnesses for the first evidence review of police use of data hacked dur

EncroChat ruling has ‘far-reaching effects’ for legal role of interception in UK investigations

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2021-06-24 00:00:13

Duncan Campbell and Dr Ian Brown were the only computer forensic expert witnesses for the first evidence review of police use of data hacked during 2020 from the ultra secure EncroChat phone network, claimed to be dedicated for the use of serious criminals. Here they assess the impact of the appeal court verdict on future legal use of intercept evidence.

The key question considered by the Court of Appeal was the distinction between temporary, transient, random-access memory (RAM) and permanent data storage in modern digital communications systems.

In computer science and technology, the distinction between memory and storage is fundamental. Until 2021, RAM and processor registers and memory store areas were understood to be an integral part of every digital transmission system – unlike records such as voicemails left and stored when phone calls do not connect.

There now appears to be no legal distinction between temporary memory and data stores inside computing devices. The Appeal Court explained: “The 2016 Act does not use technical terms ... experts have an important role in explaining how a system works, but no role whatever in construing an Act of Parliament.”