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UK - surveillance of communications goes through the roof

28 March 2012

UK
Surveillance of communications goes through the roof

Summary

A special analysis on the surveillance of telecommunications by Statewatch shows that the authorised surveillance in England, Wales and Scotland has more than doubled since the Labour government came to power in 1997.

Figures published by the Interception of Communications Commissioner for England, Wales and Scotland (no figures have ever been made available on Northern Ireland) for 2001 appear to show that the number of interception warrants issued dropped from 1,900 in 2000 to 1,445 in 2001. But the true picture is quite the reverse. Changes to warrants, "modifications", which previously required a new warrant have been excluded from the figures - when these are added it shows that the total number of warrants issued in 1996 (the last full year of the Conservative government) was 1,370 and for 2001 the total was 3,427. Moreover, even these figures are a major under-estimate due to changes introduced under the Regulation of Investigatory Powers Act 2000 (RIPA).

Tony Bunyan, Statewatch editor, comments:

"The official figures are a travesty. Figures are provided which show that surveillance warrants have doubled since Labour came to power in 1997 - they are now more than double the figures in the Second World War. But no figures are given on other major changes brought in under RIPA 2000 that would show the real extent of interception.

The new method of issuing warrants and changes to them is said to make life easier for officials but at the same time it hides from public view the true extent of surveillance.

The Interception Commissioner admits that the great majority of warrants are issued to combat crime so this enormous expansion cannot be explained away as combating terrorism (national security)."

Analysis

The annual report of the Interception of Communications Commissioner for 2001 was published in October 2002. The report, by the Rt Hon Sir Swinton Thomas, as usual shows that no complaint by a member of the public to the Investigatory Powers Tribunal has been upheld.

The report appears to show that the number of warrants issued dropped significantly to the lowest for five years. However, the true picture is quite different.

On the face of it the number of warrants issued to conduct communications surveillance (telephones, mobiles and letters) fell in England and Wales from 1,608 to 1,314 and in Scotland from 292 to 131. But the Commissioner's report says that the continued increase in serious and organised crime and the "increased facility to counter it" (ie: new means of surveillance) are:

"the main cause of the larger number of warrants. The significantly higher level of warrants sought each year"

Interception warrants issued:

        England
         & Wales        Scotland       total

1990      515                  66             581
1991      732                  82             815
1992      874                  92             966
1993      998                122          1,120
1994      947                100          1,047
1995      997                138          1,135
1996   1,142                228          1,370
1997   1,456                256          1,712
1998   1,763                268          2,031
1999   1,734                288          2,022
2000   1,608                292          1,900
2001   1,314                131          1,445

No figures have ever been provided on Northern Ireland.

From these figures it would seem that warrants for the surveillance of communications (telephones etc) and mail-opening have dropped significantly after 2000.

However, quite the reverse is true.

From July 1998 a major change in the interpretation of the 1985 Interception of Communications Act (IOCA) meant that where previously any change to the initial warrant (eg: a person moved or changed phone numbers), known as a "modification", led to a new warrant being issued for all instances concerning serious crime. As noted by the them Commissioner, Lord Nolan, in the report for 1999:

"The great majority of warrants issued in England, Wales and Scotland remain related to the prevention and detection of serious crime"(p3)

Warrants issued under the two other categories on grounds of national security or "safeguarding the economic well-being of the UK" can be modified by a "senior official".

This means that in order to get historically comparative total figures the number of "modifications" carried out each year need to be added to the number of initial warrants. The additional figures, post July 1998, for "modifications" are:

            England &
            Wales             Scotland        Total

1998         172         not applicable        172
1999         565         not applicable        565
2000         722         not applicable        722
2001      1,788                 194            1,982

Thus the correct figures for the extent of admitted communication surveillance (warrants plus modifications) is as follows:

             England
             & Wales         Scotland        Total

1990         515                   66                 581
1991         732                   82                 815
1992         874                   92                 966
1993         998                 122              1,120
1994         947                 100              1,047
1995         997                 138              1,135
1996      1,142                 228              1,370
1997      1,456                 256              1,712
1998      1,935                 268              2,203
1999      2,299                 288              2,587
2000      2,330                 292              2,622
2001        3,102                 325            3,427

Until 1996 the highest annual number of warrants issued was 1,682 in 1940 at the onset of World War II.

Since the Labour government came to power in 1997 communications surveillance has therefore doubled.

However, this is only the part of the picture for which precise figures are provided. Three changes following the introduction of the Regulation of Investigatory Powers Act (RIPA) on 2 October 2000 mean that the increase in surveillance is much, much greater.

The first change, as noted by the Commissioner, is that warrants are now issued against named individuals rather than as an order placed on a communications provider. This means that a warrant against an individual can state that all their mail, phone-calls, mobile calls, e-mails and internet usage are to be placed under surveillance. Or put another way round, now one warrant against an individual is used in place of up to five separate warrants (served potentially on five different service providers) previously.

Warrants used to be issued simply to the Post Office (mail) and British Telecom (phone), under Section 2 of the IOCA 1985. But the growth of privatisation and diverse means of communication has changed the demands of the agencies.

Thus a warrant is now issued to the requesting agency (eg: MI5, MI6, GCHQ, NCIS etc) which includes "schedules" that list addresses, numbers, "apparatus or other factors, or combination of factors" (eg: the location of a mobile phone users at a particular point in time). The agencies then place an interception order on any service provider.

There is little doubt that this change should, in theory, result in fewer application for warrants or put another way, if the overall number of warrants issued stays the same then more people are being placed under surveillance. It is not possible to determine the numercial increase in warrants due to this factor.

The Commissioner is, at times, economical with the truth. Throughout the report he writes of "individuals" or "persons" but there is only one reference to "premises". Like the previous IOCA 1985, the new RIPA 2000 in Section 8.1. allows for warrants to be issued for the surveillance of "premises" (as distinct from a person). This means that a house or office occupied by a group of people or an organisation (which may be small or very large) are covered by one warrant. No breakdown is given of the number of "premises" placed under surveillance.

The second major change under RIPA 2000, as distinct from the IOCA 1985, is the periods for which warrants are issued.

Under RIPA 2000 warrants can be issued on four grounds (Section 5.3) the fourth of which is new:

(a) in the interest of national security
(b) for the purpose of preventing or detecting serious crime
(c) for the purpose of safeguarding the economic well-being of the UK
(d) to give implement "any international mutual assistance agreement" concerning para.b above (ie: serious crime).

Under the IOCA 1985 warrants covering the then three different purposes were all for two months. Renewals, were for six months for categories (a) and (c) and one month for (b) serious crime, the most numerous category. RIPA 2000 greatly extended these periods. Initial warrants for categories (a) and (c) is now six months with renewals for another six months and for category (b), serious crime, an initial three months with renewals for three months. Put simply, the periods covered by warrants has in effect been doubled. For example, for serious crime an initial warrant plus one extension used to cover three months, now it is six months. For national security (a) and "economic well-being" (b)a warrant used to cover eight months and now it is twelve months.

Again it takes little imagination to see that if, for the administrative convenience of the Home Office and the agencies (ie: a lot less work), the periods have been extended in this way there should either be significantly fewer warrants issued, or if the same or a greater number are issued then the rise in warrants requires explanation and quantification.

The knock-on effect is compounded because, as the Commissioner notes, now a single warrant for the surveillance of an individual or premises has to be renewed. Whereas before: "Under IOCA, warrants for intercepts with different CSPs" (communications service providers) had to be renewed separately thus adding to the total number of warrants issued.

Overall, the figure for the number of initial warrants issued in 2001, 1,445, disguises the fact that i) 1,788 previously included "modifications" are excluded; ii) that the periods for warrants in the most numerous category, serious crime, have increased by 50% (initial warrant) and 100% (renewals); iii) where previously between one and five warrants were issued to communications service providers now only one is issued to cover a person or premises (which also has a knock-on effect on the number of renewals).

The effect of these changes are alluded to in the Commissioner's report. On the Metropolitan Police Special Branch (MPSB) he writes that:

"Statistically, MPSB warrants are now held for longer than in the past - typically over a period of several months rather than days"

The example given by the National Criminal Intelligence Service (NCIS) to the Commissioner shows that in the last year of the IOCA 1985 they had "just over 600 warranted target addresses" (individuals and premises). Whereas as in the first year of RIPA 2000 they had 800 target addresses "deriving from only just over 400 warrants". While the number of warrants dropped by a third (from 600 to 400) the number of target addresses rose by a third (from 600 to 800).

Taken alone the overall rise in warrants issued (including "modifications") showed a doubling of surveillance since 1997. The additional, unqauntified, issuing of single warrants to agencies where previously between one and five may have been issued to CSPs and the extended periods of the warrants means that this is a gross under-estimate of the growth in surveillance since the Labour government came to power.

Furthermore it must be noted that Chapter II of Part I of RIPA is not yet in force because when it was revealed that the Home Offices list of designated bodies extends to 1,039 public authorities there was public uproar and the proposal was put on hold. Chapter II covers the access of designated bodies to communications data (traffic data and personal details but not content data). The Commissioner will be responsible for this mode of surveillance too and notes that his role is to be extended to "64 police authorities and an as yet uncertain number of public authorities [who] will be authorised to acquire and disclose communications data".

Theoretically the agencies have no legal powers to obtain such data but through the "voluntary" cooperation of service providers this new form of surveillance, which is unquantified, is widespread (see below).

"Conspiracy" or norm?

The Commissioner tries to confront widespread suspicion that communications surveillance is much wider than admitted. "Many members of the public", he says, "are suspicious about the interception of communications.. people tend to be suspicious of what takes place in secret, and are worried about the "big brother" concept". He then answers his own question and shows a touching faith in the strict implementation of the law by stating that:

"the concerns are, in fact, unfounded. Interception of an individual's communications takes place only after a Secretary of State has granted a warrant.. Of course, it would theoretically be possible to circumvent this procedure, but there are extensive safeguards to ensure this does not happen.. Furthermore, any attempt to get round the procedures for legal interception would, by reason of the safeguards, involve a major conspiracy within the agency concerned which I believe would, for practical purposes, be impossible" (para 10, p3)

The security and intelligence agencies (and the Special Branch) have always exceeded their legal powers since they were respectively created in 1883, 1909 and 1911). For example, from 1977 British Telecom routinely supplied agencies on request lists of peoples' calls and the numbers involved. This was not legalised until RIPA came into effect in October 2000. For years some communications providers of mobile phone, e-mail and internet services have routinely flouted the Data Protection Act by retaining traffic data (and in some cases content data) and supplied data to the agencies. The Government Communications Headquarters (GCHQ), which operates under the Foreign Office on behalf of MI6 (the UK's overseas intelligence agency) and Defence Intelligence, are issued warrants for specific investigations. But GCHQ contributes to, and has access to, data gathered under the ECHELON system which gathers all communications traffic across the world and then applies "dictionaries" of key words to search for intelligence (see, "Interception Capabilities 2000", Duncan Campbell, April 1999).

Equally important is the routine "hacking" of service providers by MI5, MI6 and the Special Branch (this developed out of creating systems to counter "hackers"). It can be done very quickly by illegally entering a server and downloading all data (traffic and content) on an individual or group within minutes - and can be undertaken in the office, at home or in the field. To this extent modern forms of communication, e-mails and internet sites and usage, "facilitate" unaccountable surveillance.

These practices do not constitute a "major conspiracy", rather they follow a well-trodden path whereby the practices of these agencies have always exceeded their legal powers - which are usually, but not always, made lawful years later.

1. Report of the Interception of Communications Commissioner for 2001 (pdf)

2. See Statewatch, vol 7 nos 1 & 4 & 5; vol 8 nos 5 & 6; vol 10 no 6; vol 11 nos 1 & 2; vol 12 nos 1 & 3/4; the most complete available figures for interception warrants in England, Wales and Scotland from 1937 onwards is available on the Statewatch website: www.statewatch.org/news/2003/jan/teltap01.htm

3. Latest available figures 1937-2003 (updated 26 July 2004)

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