E-mails that could return to haunt you

Whether you're gossiping in the office or providing an internet service, electronic messaging can cost you dear
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The Independent Online

The White House, it emerged last week, is in possession of a disc containing e-mails sent by Monica Lewinsky, and is debating whether to make them public. At the same time, it was revealed that a criminal investigation was under way into whether White House officials deliberately suppressed e-mails subpoenaed in investigations into the US administration. In Britain, meanwhile, an internet service provider was sued because of libellous comments carried on its system.

E-mail security is something we take for granted at our peril. The electronic office gossip that flows back and forth can easily be read by third parties. And now the right of authorities to access what most would consider private electronic correspondence is about to be enshrined in a new law. The message is that e-mailing can be a dangerous game both for those who send e-mails and for those who provide the means for their transmission.

Tony Blair keeps saying he wants to make Britain "the best place in the world for e-commerce". Barbara Roche, at the Department of Trade and Industry, agrees, with the widest smile you can imagine. You do the work, they tell industry, and we'll help create the environment - such as www.education.education.education - and, of course, the law.

Unfortunately, when it comes to the internet, the law in Britain is an ass - as was demonstrated by a court case concluded last week. Worse, it is on the verge of becoming not only an ass but positively sinister, giving the Government absurdly wide-ranging powers to snoop on your e-mail without your knowing, and to revoke the normal test of guilt (being proved beyond reasonable doubt) in a criminal case.

The likely effect will be to make Britain a distinctly unattractive place to site your e-commerce operation - and, given that one can run an internet business from any country, we could be the losers.

Let us start with the existing absurdity revealed by a libel case settled last Thursday, in which the UK-based internet service provider Demon paid £15,000 in damages to Laurence Godfrey, a physicist who had complained that he had been libelled by articles which appeared on Demon's newsgroup server. Demon will also have to pay legal costs, which could be more than £200,000. The rule is like arresting a charity collector for forgery because there are some counterfeit notes among the takings.

Though not a user of Demon's service, Dr Godfrey discovered in 1997 an article on a "newsgroup" - a worldwide bulletin board - forged so that it seemed to have been written by him. It was, his lawyer said, "squalid, obscene and defamatory" but it originated outside the UK. Dr Godfrey demanded that Demon remove the posting. Demon demurred, saying that it was not its responsibility.

Then in 1998 a Demon customer also posted something about Dr Godfrey on the newsgroup uk.legal. The physicist contacted Demon again; once more it disclaimed responsibility. It believed it had the defence of being a "carrier"; the idea that Dr Godfrey could successfully sue seemed as outlandish as suing BT because someone libelled you on a chatline. Dr Godfrey did not see it that way; soon two libel actions were on their way.

"Newsgroups", where everyone on the internet can put in their thoughts on any topic, are not distributed from a single place. Instead, there is a vast database passed on and contributed to by tens of thousands of "news servers". Each copies the database, receives new postings from its users, and passes it on to the next server. "Usenet", as it is called, is a huge floating discussion which began in 1979 but now comprises millions of postings every day. It is like a suggestion box, which you hold while people put ideas in. You can see why Demon's managers felt Dr Godfrey's objections were misplaced. But in March last year Mr Justice Morland declared that Demon could not use section one of the 1996 Defamation Act which provides the let-out of being an "innocent carrier" of information: Demon had been told about the posting Dr Godfrey objected to and so was no longer innocent. Hence last week's payout to Dr Godfrey.

Demon said it would press the Government for a change in the law to give ISPs immunity from such claims. "The law has not kept pace with the development of the internet," said a senior manager. Mark Stephens, a partner at the London-based law firm Finers Stephens Innocent, said: "It signals a considerable risk to the freedom of the internet. Any company is going to err on the side of caution and take down websites it provides about which it receives complaints."

But are Mr Blair and Ms Roche listening? Their attention may be off such apparently trivial questions as our freedom of speech, and on their great vision of a Britain bulging with e-commerce companies. But they are about to mess it up there, too. The Home Office select committee is studying the Regulation of Investigatory Powers Bill, which could become law by October. If it passes, the Government will be able to tap your internet communications, including your e-mail and the pattern of your web browsing, without you knowing.

Not so different from today, perhaps, when you might never know that your phone is being tapped. But there's an extra kicker. If you have an encrypted file on your hard disk, the police can demand that you turn over the decode "key". If you refuse, or cannot comply, you can be jailed for up to two years.

Charles Clarke, the urbane Home Office minister in charge of the Bill, insists that people will not be jailed if the court decides "on the balance of probabilities" that they do not have, or have forgotten, the key. But that changes the normal test of guilt in a criminal case - from proof beyond reasonable doubt to the test used in civil suits.

Eroding civil liberties is only the beginning. Internet service providers, such as the luckless Demon, can be obliged to place, at their own expense, computers known as "sniffers" to monitor traffic for the Government. Examining the Bill in committee, David Ruffley, the Tory member for Bury St Edmunds, commented: "If ISPs in the UK are made to carry the burden of the costs of interception, at best they will be at a disadvantage compared to their international competitors and at worst will be unable to operate. That does not sound like it would help make the UK 'the best place in the world for e-commerce'."

America, France, Ireland and Germany have already rejected a similar law. The prospect that Britain might get one worries many people. But Mr Blair doesn't mind. After all, as he keeps telling us, he doesn't really understand the internet. The pity is that nobody else in the Government seems to either.

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