Intercept Evidence and E-disclosure

December 10, 2009

I was amazed to hear that one of the main reasons that intercept evidence cannot be used in criminal trials for serious crimes (such as those involving terrorism) is that the storage costs might run into billions of pounds. In other words, our disclosure regime is so onerous that its costs defeat its objective – the administration of justice.

The cost of disclosure was not a surprise to me. Anyone involved with e-disclosure, even at three removes, is well aware that the burden of disclosure brings with it a frightening cost. I just assumed that, if anyone could be expected to afford the cost, it would be the government. Apparently not.

I also assumed that the automated systems of the kind routinely used in hi-tech call centres would be used to reduce search costs. Indeed I had heard whispers to the effect that the techniques employed by firms such as Autonomy to crunch voice messages and the like had in fact be adapted from software designs commissioned by the CIA. Apparently not.

Now, as far as I know, MI5 are not listening in on my calls. Maybe the spooks are cunningly disguised as pheasants and are keeping my house under close watch but I am afraid that all is clear (much as I might wish that Hermione Norris was around the corner and about to jump on me, purely in the interests of national security). But my calls are taped from time to time by call centres and hundreds of organisations are keeping records of my e-mails and the occasional letter. We have a disclosure regime that requires them to preserve all these records and be able to retrieve them in the event of a relevant dispute. The cost of these exercises is spread throughout the commercial world, in private and public sectors.

Of course, most businesses are only now beginning to realise the very high costs involved. Many are going to remain ignorant until the day a court case forces them to recognise those costs – and they go bust. They don’t have the option of saying ‘we’ve looked at this carefully, and the cost of keeping relevant evidence and disclosing it properly is so high that we’ve decided not to bother’.

I genuinely believe that the review of intercept evidence will have involved the very top experts on e-disclosure in the wider sphere beyond law enforcement (I have to believe that for the alternative is madness). And I guess that there are problems involved that complicate the issue but don’t emerge from the brief reports I have read – on the face of it, the technical and legal problems are not radically different. But I do hope that the continuing review will bear in mind the disclosure burden carried by all those involved in civil disputes and consider recommendations that make that burden less costly. After all, if a government cannot afford proper disclosure, there’s little hope for the rest.