Does Irish law protect your voicemail?

The Irish Independent has an interesting story about wrongful access to mobile phone voice mailboxes. At the end of the story I've some questions about whether Irish law does in fact protect your voicemail.

A MILLIONAIRE property developer is at the centre of a Garda investigation into allegations that he illegally accessed other people's mobile phones.

Inquiries have been carried out into a specific complaint lodged by a woman who formerly worked for the businessman.

The woman claimed the developer had been accessing her mobile phone to listen to her messages and had become aware of information which he could not have obtained elsewhere.

She made similar allegations against the developer's wife and her complaints led to an investigation by gardai from a south Dublin station.

The woman made her complaint to gardai last April but alleged that the interception of messages had begun in 2004.

A file on the matter was prepared by detectives for the Director of Public Prosecutions.

But last week he decided that criminal charges should not be brought against the developer.

One of the grounds for this decision was that the mobile phone used to contact the woman's mailbox belonged to the man's company rather than to him.

However, gardai last night said further inquiries were being carried out to establish if messages on other mobile phones had been intercepted.

Security code

A mobile phone mail box can be accessed easily if the owner of the phone does not change the standard security code provided by the manufacturer.

However, it is a crime under the Postal and Telecommunications Act 1983 and can also constitute a breach of the Criminal Damage Act 1991.

Garda inquiries in this case were also carried out under a section of the Non-Fatal Offences Against the Person Act as interception of the messages and use of the information acquired could be interpreted as harassment.

The wealthy businessman has a high profile and is well known in the property world.

The allegations against him were made by a woman, who had worked for him for several years but then had a disagreement with him.

She said that during a meeting with the developer she realised he had possession of information which, she claimed, he could only have known by listening into the mailbox of her mobile phone.

She alleged her mailbox contained a number of messages she had not heard but were listed as old messages.

The woman also claimed that the information gleaned from the mailbox had been used to harass and intimidate her.

Garda inquiries into the location of the calls made to access the messages pinpointed a mobile phone which the believe could have been used to intercept the messages and was in the ownership of the developer's company.

The businessman was interviewed a number of times by gardai and was said by officers to have co-operated fully with their inquiries.

But despite the DPP's decision not to prosecute in the case of the former employee, gardai said they intended to extend their inquiries into other possible phone intercepts.

Although the story claims that access to voicemail messages is "a crime under the Postal and Telecommunications Act 1983", it's not clear if that is true. Section 98(1) of the 1983 Act provides:

A person who-
(a) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or
(c) does anything that will enable him or another person to intercept,
telecommunications messages being transmitted by [a person deemed to be authorised under the Authorisation Regulations] or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence.

The reference to telecommunications messages being transmitted suggests that stored messages, such as voicemail messages, may not be protected by section 98.

There are two counter arguments. First, it might be said that such messages are "being transmitted" until they are first listened to. This is an incomplete solution, however, at best it would only protect new messages, with those already listened to having no protection.

Second, it could be argued that the act of dialing into the voice mail itself causes the message to be transmitted, and the interception takes place where you listen to such a message. This is given support by the very wide definition of "interception" contained in section 98:

In this section, "interception" means listening to, or recording by any means, or acquiring the substance or purport of, any telecommunications message ...

Again, though, this is an incomplete solution. If we adopt this argument, then the mobile phone company employee who listens to the message at work would not be guilty of an offence, as the (locally held) message would not be transmitted.

This article highlights, then, one problem with Irish interception law. Whatever view we take, it seems that stored messages such as voicemail do not enjoy adequate protection - and it is long past time that the 1983 Act was updated to take account of technological changes in the meantime.