UK: Consultation paper on telecommunications interception(feature)
01 May 1999
In June the Home Office published a Consultation paper on the planned revision of the 1985 Interception of Communications Act. The paper says this is necessary to cover new means of communication (like "pagers" and satellite mobile phones) and to "provide a clear, statutory framework for authorising disclosure of data held by communications service providers". It says the government is also considering whether new legislation should "cover also intrusive surveillance other than interception of communications".
EU governments have reacted to criticism of the planned EU-FBI telecommunications surveillance system, and the new interception powers in the EU's draft Convention on Mutual Assistance in Criminal Matters, by saying that this surveillance (and people's rights) will be governed by national laws. What the governments do not say is that the national laws in EU member states are (or will be) undergoing amendments to allow the surveillance being planned at the EU level. Thus the (commercial) rationale in the Home Office paper is that:
"Communications Service Providers will be required to take reasonable steps to ensure that their system is capable of being intercepted. This will be an ongoing requirement which CSPs will have to consider each time they develop their network or introduce new services. CSPs will also be required to provide reasonable assistance to effect warranted intercepts...
Maintenance of an interception capability forms a basic requirement for providers of communications services in countries where these services providers are in commercial competition with the UK, both in Europe and globally, including such countries as France, Germany, the Netherlands, Sweden, Canada, the USA and Australia. We therefore feel that, viewed in the international context, the proposed requirements are not unreasonable nor will they place the UK's communications services at a commercial disadvantage (paras 5.3 & 5.4)"
The UK Home Office's argument goes on to say that this development is also necessary to "take full account of internationally recognised standards such as the International User Requirements for the Lawful Interception of Telecommunications". No mentioned is made of the fact that these very same, so-called, "internationally recognised standards" were the direct product of EU-FBI collaboration (IUR, International User Requirements, was adopted in secret by the EU "written procedure" on 17 January 1995, see Statewatch vol 7 no 1 & 4 & 5; vol 8 nos 5 & 6; vol 9 no 2).
Reference is also made to the draft Convention on Mutual Assistance in criminal matters. It suggests there will be a "double-lock of safeguards" as the "requirements of national law would apply to both the requesting and requested Member State". This may sound fine but as all EU member states are changing their laws on interception to allow exactly the same forms and degree of surveillance it is quite meaningless. In another sleight of hand the paper then says no request for interception by another EU member states would be allowed unless: "the Secretary of State were able to issue a warrant in accordance with the criteria and safeguards in UK national law". This is perhaps a reference to the fact that the planned "realtime" interception (as it is actual happening or about to happen) envisaged will have to be instantaneously authorised by the police officer or official.
No reference is made to which crimes or suspected criminal acts would be covered in the draft Convention - although the public rationale is that these new surveillance powers are needed to combat "serious" and/or "organised crime" - no such limits are set out in it.
What changes are proposed to the 1985 Act?
The current UK Interception of Communications Act 1985 (IOCA) allows for warrants to be issued by a Secretary of State (Home Secretary, Foreign Secretary, Secretaries of State for Northern Ireland and Scotland) in the following areas: i) "in th