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UK: Commissioner's annual reports: Interception of Communications and Surveillance: More information or a lot less? (1)

12 August 2012

- Interception Commissioner cuts three of four annual statistics and claims giving more information would aid criminals
- Surveillance Commissioner complains again about the lack of resources to do the job properly

12.8.12

The Annual Report of the Interception of Communications Commissioner has never been a mine of information giving only very general figures as to the number of interception warrants issued and the number of "modifications". "Modifications" concern time extensions to existing warrants which prior to 1998 required the issuing of a new warrant - prior to this date the annual figure for warrants covered new ones issued and modifications: See: UK: Changes in telephone-tapping warrant procedure disguises true figures

The only way to try and get a fuller picture was obtained between 1998 to 2010, by adding together the number of new warrants issued and the modifications for each year. So in 2010, for example, 1,865 warrants were issued together with 6,409 "modifications" giving a historically comparative figure of 8,274 of warrants in operation in England, Wales and Scotland. See: Statewatch Observatory: UK: Surveillance statistics: 1937-2010

Since 1937, when the figures for interception warrants were first published, they have not included - except for five years between 1980 and 1984 - warrants issued by the Foreign Secretary for MI6 (external, SIS, Secret Intelligence Service) and GCHQ (Government Communications Headquarters which is part of a global interception cooperation system set up in 1948 under the UK-USA Agreement (see: UK-USA: 1948 UK-USA agreement and ECHELON states behind "Server in the Sky" project). Warrants issued by the Secretary of State for Northern Ireland have never been published.

Under Regulation of Investigatory Powers Act 2000 (RIPA), Section 5.3 there are four grounds to issue an interception warrant and the time period were extended: "extensions" are "modifications"

a) in the interests of national security: Initial warrant 6 months then 6 month extensions
b) for the purpose of preventing or detecting serious crime: initial warrant 3 months and 3 month extensions
c) for the purpose of safeguarding the economic well-being of the UK: Initial warrant 6 months, 6 month extensions
e) to implement "any international mutual assistance agreement" concerning para b. above (ie: serious crime): Initial warrant 3 months, 3 month extensions.

In the report for 2011 the Commissioner decided to make four major changes "driven by demands for greater transparency":

1) for the first time the figure for the number of warrants issued include those signed by the Foreign Secretary and the Northern Ireland Secretary:

"The total number of lawful intercept warrants issued in 2011 under Part I Chapter I of RIPA was 2,911."

What does this figure tell us:

- over the last 5 years the average number of warrants issued by the Home Secretary (for police, immigration and MI5, the internal security agency) was 1,844 per year. This suggests that around 1,067 warrants are issued by the Foreign Office and the Northern Ireland office in 2011.

2) The average figures above are based on a combination of the number of new warrants issued plus the number of warrants in force on 31 December of each year. In his 2010 Report the Commissioner gave the following figures: "Warrants in force at 31 December: 1,048" and "Warrants issued in year: 1,682". This gives a total of 2,730 warrants in operation over the year. Now the Commissioner is only giving a figure for the number of warrants issued over the year but not those already in force at the end of 2011. Thus the number of intercept warrants operational over the year are significantly higher than this single figure suggests.

3) This is further compounded by the third change, in the name of "transparency", the Report for the first time since 1998 does not give the number of "modifications" over the year. The average number of "modifications" (where previously a new warrant would have been issued) over the last five years has been 5,809 per year

To calculate a figure for number of intercept warrants operational during 2011 is thus based on reasonable estimates. The inclusion, for the first time of warrants issued by the Foreign Secretary and Secretary of State for Northern Ireland, shows a 27% rise over the 2010 figure. On the presumption that the number of "modifications" issued by the Foreign Secretary and Secretary of State for Northern Ireland follows the same pattern as those issued by the Home Secretary it can be estimated that the real figures for 2011 are: Warrants issued 2,911, warrants in operation at 31 December: 1,135 giving a total of 4,046 and that the number of "modifications" were 7,377 giving an overall total of 11,423 intercepts in operation in 2011.

4) The fourth change is that because only a single figure is provided in the whole report ( global figure of 2,911 warrants issued in the UK). Separate figures are not provided for England & Wales and Scotland. The figures for England & Wales have been published since 1937 and those for Scotland since 1967, now they are not. This a hardly a great step forward for transparency.

USA: A model to follow?

In the USA, under the Omnibus Crime Control and Safe Street Act of 1968 each federal and state judge is required to file a separate written report with the Director of the Administrative Office of the United States Courts (AO) on each application for a court order authorising the interception of a wire, oral, or electronic communication. The report include data state by state. These reports cover law enforcement agencies but not security and intelligence agencies. See: USA Wire-tap report

Warrants are usually issued for 30 days but can be extended. The average length of a warrant in 2011 was 42 days. As we saw above the initial time limited in the UK for serious crime is 3 months (90+ days).

What is interesting about the report of the Director of the Administrative Office of the US Courts is that the information it provides on tackling serious crime at least provides the broad picture and some degree of accountability. For example, Table 2 (pdf) provides the total number of intercept orders (broken down by Federal and state-by-state) as 2,732 with 2,189 actually installed and 1,777 extensions.

Table 6 (pdf) breaks down the 2,189 orders installed to show that 2,092 involved tapping landline and mobile phones, 6 surveillance "bugs" (microphones), 4 digital and 87 "Combination" referring to installed intercepts for which more than one type of surveillance was used. Most interestingly, based on the 2,189 orders put into operation, there were 3,547 people arrested and 465 people actually convicted (just 13.1%).

Finally, Table 9 (pdf) gives the arrest and conviction rates for the previous 10 years.

It is not for a moment suggested that there figures represent the full scale of interception in the USA by the myriad of agencies that operate there. But these figures concerning serious crime have been issued in the USA for the past 34 years without any apparent aiding of those with criminal intent. Why cannot the same figures be provided in the UK?

More detail would help criminals or threaten national security

In his Foreword the Commissioner states:

"I disclose this year for the first time in this part of my report the total number of lawful interception warrants signed by Secretaries of State and Scottish Ministers. No more detail is required to evaluate the work of the overseer, and any further breakdown of numbers in an open report could be of assistance to criminals or those who pose a threat to national security." [emphasis added]

Tony Bunyan, Statewatch Director, comments:

"To suggest that providing aggregate figures - as has been the case for the last fourteen years - on the number of warrants in force on 31 December and the number of warrant "modifications" would aid criminals or endanger national security is simple nonsense.

The voluminous report of the Interception Commissioner is primarily concerned with showing how good a job he does on inspecting the agencies. But as an exercise in democratic accountability it is greatly wanting with the Commissioner releasing less information that ever before."

Communications data (RIPA Part I Chapter II)

The number of requests for communications data from service providers was 494,078. As in previous years the principal users are the intelligence and security agencies, police and other law enforcement agencies (eg: immigration and customs) - for whom access is usually automated. The data covers: landlline phone-calls, faxes, e-mail, mobile calls (including location) and internet usage (which also reveals content). This is a 11% decrease on last year:

- The year 2007: 519,260
- The year 2008: 504,073
- The year 2009: 525,130
- The year 2010: 552,550
- The year 2011: 494,078

Over the year there were 895 communications data errors, well up on the 640 in 2010. 80% were due to errors by agencies and 20% by service providers. These included two errors which led to wrongful arrests and detention of members of the public:

"Unfortunately in two separate cases where a CSP disclosed the incorrect data, the mistakes were not realised and action was taken by the police forces on the data received. Regrettably, these errors had very significant consequences for two members of the public who were wrongly detained / accused of crimes as a result of the errors."

Chief Surveillance Commissioner's report

The Commissioner is responsible for surveillance powers under the 1997 Police Act and RIPA 2000, see: Annual Report for 2011-2012 (pdf)

The Commissioner produced a report on Mark Kennedy, the undercover police officer's involvement in the Ratcliffe-on-Soar power station protest: Surveillance Commissioners report on Kennedy (pdf) in December 2011 which largely deals with the decision to prosecute not the authorisation for Kennedy's undercover cover activities between 2003 and 2010.

In his report for 2010 the Commissioner complained about the failure of the Home Office to provide him with a website which could hold public information and give access to a "limited audience": see: UK Chief Surveillance Commissioner 2004-2010: Property "interference" and covert human information sources

This failure led to an embarrassing situation. The Commissioner issues guidance to agencies and public authorities, to which he does not want to give a security classification, but wants to make available via his non-existent website. In January 2010 Alex Skene applied for a copy of the said "OSC Procedures and Guidance" (2008) which was refused. But on 11 January 2012 he found a copy of the document on a local government website: OSC: Procedures and Guidance: Oversight arrangements for covert surveillance and Property Interference conducted by public authorities (pdf)

Under the Protection of Freedoms 2012 Act local "many thousands of magistrates" up and down the country will be able to authorise covert surveillance and the Home Office wanted the Surveillance Commissioner to extend his remit to inspect these decisions. He has refused because Section 62 of RIPA excludes judicial authorities and what is more "I do not have the resources to take on this task". Which begs the question who is going to do it?

The Commissioners' budget and staff have been cut and promises of more help with information technology have not been delivered and:

"I have to rely on archaic fascimile machines which repeatedly malfunction"

Over the year there were:

- 2,646 "property interference authorisations" excluding renewals
- 408 "intrusive surveillance authorisations" (eg: bugging bedrooms)
- 12,015 "directed surveillance authorisations" ("covert" but not intrusive) plus 1,830 already in place
- 6,455 "directed surveillance authorisations" by non-law enforcement authorities
- 3,361 new "Covert Human Intelligence Sources" (CHIS) and 3,312 already in place
- 57 approvals for the National Technical Assistance Centre (NTAC), who part of GCHQ to tackle encryption. 14 people have been charged, but for five have not been proceeded with, and two people have been convicted.

On the increased use of private security firms by "a designated public authority" the Commissioner reserves the right to examine their activities but:

"I lack the capability to oversee an increasingly number of entities and most will operate without my oversight. Some of these entities conduct covert surveillance but have a close relationship with one or more public authorities."

He notes that a CHIS relationship is:

"it does not require consent; and it is not dependent on the CHIS being unknown to the person being reported on. When a report is provided to a public authority without the knowledge of the person being reported on, it is covert to that person. If a person establishes or maintains a relationship and discloses information covertly, he is a CHIS. Authorisation is not obligatory, but is advisable."

and on the private security industry: "it seems to me odd that the use of techniques that would require authorisation if conducted by a public body is accepted, without apparent challenge, if it is not conducted on behalf of the State.... there is no system of regulation of surveillance for covert investigative, commercial or entertainment purposes."

Finally, the Commissioner observes that law enforcement agencies argue that the drop in "directed surveillance" is due to:

""overt" investigations using the internet.. My Commissioners have expressed concern that some research using the Internet may meet the criteria of directed surveillance. This is particularly true if a profile is built by processing data about a specific individual or group of individuals without their knowledge."

Background: Acts of Parliament

- Police Act 1997 (Part III)
- Regulation of Investigatory Powers Act 2000 (Parts II & III)