APPENDIX 4 (continued)
INTERCEPTION OF COMMUNICATIONS IN THE UNITED KINGDOM:
EXPLANATORY NOTE
The Interception of Communications Act (IOCA) set outs the
statutory framework for the lawful interception of communications.
The Act allows a Secretary of State to issue a warrant requiring
the person to whom it is addressed to intercept communications
in the course of their transmission by post or by means of a public
telecommunications system.
Under Section 2 of IOCA warrants are not issued unless the
Secretary of State considers the warrant necessary for one of
the following reasons:
- in the interests of national security;
- for the purpose of preventing or detecting crime;
- for the purpose of safeguarding the economic well-being
of the United Kingdom.
and providing that the information necessary to acquire could
not reasonably be acquired by other means.
Section 6 of the Act provides a number of safeguards regarding
the intercept material. This includes ensuring that the Secretary
of State approves the arrangements relating to, for example, the
number of people to whom the material is disclosed and the number
of copies made. It is also a requirement for intercept material
to be destroyed after it is no longer necessary for the purpose
it was issued.
An independent Commissioner reviews the exercise by the Secretary
of State of his power to issue warrants, and an independent Tribunal
provides a mechanism for complaints by any member of the public
who believes his or her communications may have been unlawfully
intercepted. The Commissioner makes an annual report to the Prime
Minister and his report is laid before Parliament, subject to
the exclusion of any material which, in the Prime Minster's view
(and after consultation with the Commissioner) would be prejudicial
to national security (etc.) if published.
The Mutual Legal Assistance Convention is expected to contain
articles on interception with the objective of providing a legal
framework for judicial co-operation between Member States on the
interception of communications in connection with serious crime.
The impetus for the inclusion of these Articles is the expected
launch in 1998 of satellite personal communications systems. When
these systems are launched, the signals from them can only be
intercepted at the point they reach a ground station. This may
be in a different EU Member State to that where the person who
is making the call is located. Thus, for example, someone using
a satellite phone in the UK may only be able to be intercepted
in France. The UK, therefore, supports the proposal that the Mutual
Legal Assistance Convention should provide for co-operation between
Member States so that a law enforcement agency in the UK, to whom
a warrant has been issued is able to maintain their existing interception
capabilities. In practical terms, the UK is, at least initially,
not expected to be the host for a ground station and is not therefore
likely to be the recipient of such requests in relation
to satellite communications.
It is, however, expected that the Convention will also provide
for Member States to request the interception of terrestrial communications
on the public communications system for another Member State.
In this scenario the UK is arguing that requests for interception
should be subject to tests and safeguards equivalent to those
which apply in the Member State which receives the request. Therefore,
the UK would not, for example, issue a warrant authorising interception
(which would be carried out in the UK for transmission to the
requesting State), unless a warrant could be issued in similar
circumstances under IOCA. It is also expected that the UK would
not seek assistance under the Convention from another Member
State unless a warrant had already been issued under IOCA within
the UK.
12 December 1997
Letter from Joyce Quin MP, Miniser of State, Home Office,
to Lord Tordoff, Chairman of the European Communities Select Committee
I wrote to you on 1 December enclosing the latest version
of the EU Convention on mutual assistance. As you know, this does
not include draft Articles on interception.
I am now enclosing a UK Presidency proposal for draft Articles
on interception which we have sent to the Council Secretariat.
I hope you find this helpful. The text of the new Articles is
consistent with the evidence we gave to Sub-Committee E on 17
December, and the covering paper provides a brief explanation
of their provisions.
12 January 1998
INTRODUCTION
Further to the meeting of the Working Party on Mutual Assistance
on 7 October, the United Kingdom Presidency has prepared the attached
draft Articles on interception for consideration at the meeting
of the Working Party on 26-27 Janaury.
The draft Articles aim to establish a relatively simple framework
for mutual assistance on the lawful interception and immediate
transmission of telecommunications. The Presidency would like
to take this opportunity to emphasise the importance it attaches
to reaching agreement on Articles on interception as soon as possible,
so that they may be included in the draft Convention.
BRIEF EXPLANATION
OF THE
ARTICLES
Article 6
Paragraph 1
This is intended to limit the Convention provisions on interception
to requests for the immediate (real-time) transmission of intercepted
communications to the requesting Member State. This does not preclude
Member States from bilateral/multi-lateral arrangements for ex
post transmission of intercepted communications or requests for
assistance in obtaining information related to the interception
(see paragraph 8).
For the sake of consistency, the requested Member State is
always the Member State which is requested to facilitate the interception
(regardless of where the subject of the investigation is using
the telecommunications equipment).
All references to the requesting Member State and requested
Member State shall be taken to refer to the competent authorities
in those Member States.
It might well be necessary to incorporate a definition of
telecommunications into the text of the Articles. The definition
in the Council Resolution of 17 January 1995 on the lawful interception
of telecommunications might be used in this context: "telecommunications
means any transfer of signs, signals, writing, images, sounds,
data or intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photoelectric or photo-optical
system".
The Presidency would also welcome comments on whether the
following phrase should be included at the end of paragraph 1:
"not intended for the public by means of the telecommunications
infrastructure or a telecommunications system used to provide
services to the public".
Paragraph 2
This is intended to ensure that the competent authority in
the requesting Member State is satisfied that the requirements
of its domestic law have been met before making any request to
another Member State. The three scenarios described are intended
to cover the circumstances in which the requesting Member State
may need to seek the assistance of the requested Member State
to intercept the communications of a person within the European
Union.
Paragraph 3
This establishes the basic information required to comply
with all requests.
Paragraphs 4-7
In the case of a request under paragraph 2(c), the requesting
Member State must always obtain the consent of a competent authority
in the third Member State before making a request to the Member
State which will carry out the interception (the requested Member
State).
These paragraphs establish two principles under the Convention:
(i) where the subject of the interception is not
in its territory, the requested Member State undertakes to comply
with a request for interception on being provided with the information
in paragraph 3; and
(ii) where the subject is in its territory, that
Member State undertakes to comply with a request where it would
be granted if it had been made by one of its own national authorities.
In order to meet the requirements of (ii), the requesting
Member State must provide an explanation of why it is considered
necessary to use interception instead of less intrusive means
having regard to the full circumstances of the investigation.
In the case of (ii), the Member State will be able to refuse
a request where it would not have been granted if it had been
made by one of its own national authorities (e.g., the Member
State will be able to take into account the seriousness of the
crime under investigation, the personal status of the individual
involved etc.).
Paragraph 8
This Article is intended to ensure that the Convention does
not inhibit closer co-operation between Member States on interception
matters within the general provisions of the 1959 Convention.
For example, this would not prevent Member States from agreeing
arrangements for the ex post transmission of interception material
or other information related to the interception in accordance
with their national laws.
Article 7
The basic principles underpinning the idea of the continued
interception are borrowed from the provisions on cross border
surveillance in the Schengen Agreement and the Naples II Convention.
Article 6
INTERCEPTION OF TELECOMMUNICATIONS
1. For the purpose of assisting in a criminal investigation,
a competent authority in any Member State (the requesting Member
State) may make a request to a competent authority in another
Member State (the requested Member State) for the interception
and immediate transmission to the requesting Member State of telecommunications.
2. The requesting Member State may, after satisfying itself
that the requirements of its domestic law have been met, make
a request under paragraph 1 in relation to the use of terrestrial
or satellite telecommunications by the subject of the investigation:
(a) in the requesting Member State, and where the requesting
Member State needs the assistance of the requested Member State
to intercept his communications;
(b) in the requested Member State, and where his communications
can be intercepted in that Member State; or
(c) in a third Member State, and where the requesting
Member State needs the assistance of the requested Member State
to intercept his communications.
3. All requests as referred to in this Article shall include,
in addition to the information given in Article 14(1) of
the European Convention on Mutual Assistance in Criminal Matters
of 20 April 1959 and Article 37(1) of the Benelux Treaty:
(a) the name of the subject of the interception;
(b) the nature of the criminal investigation;
(c) the desired duration of the interception; and
(d) the provision of sufficient technical data to ensure
that the request can be met (including if possible the relevant
network connection number).
4. In the case of a request pursuant to paragraph 2(b), a
request shall also include an explanation of why it is considered
necessary to use interception instead of less intrusive means
having regard to the full circumstances of the investigation.
5. In the case of a request pursuant to paragraph 2(c), the
requesting Member State shall always seek the consent of a competent
authority in the third Member State to the interception. The requesting
Member State shall provide the competent authority in the third
Member State with the information in paragraph 3 and an explanation
of why it is considered necessary to use interception instead
of less intrusive means having regard to the full circumstances
of the investigation.
6. In the case of a request pursuant to paragraph 2(c), the
competent authority in the third Member State undertakes to give
its consent where it has been given the information in paragraph
5 and the request would be granted if it had been made by a national
authority of the third Member State.
7. A requested Member State undertakes to comply with a request;
(a) in the case of a request pursuant to paragraph 2(a)
on being provided with the information set out in paragraph 3;
(b) in the case of a request pursuant to paragraph 2(b)
where the requested Member States has been given the information
in paragraphs 3 and 4 and the request would be granted if it had
been made by a national authority of that Member State;
(c) in the case of a request pursuant to paragraph 2(c)
on being provided with the information set out in paragraph 3
and a statement of the consent of a competent authority in the
third Member State to the interception.
8. Nothing in this Article shall preclude any bilateral or
multi-lateral co-operation between Member States on interception
matters which falls within the scope of the European Convention
on Mutual Assistance in Criminal Matters of 20 April 1959.
Article 7
CONTINUED INTERCEPTION OF MOBILE TELECOMMUNICATIONS
EQUIPMENT
1. If the subject of an interception under Article 6 is using
mobile terrestrial or satellite telecommunications equipment and
moves to another Member State (hereinafter "the third Member
State") and uses that equipment within the territory of the
third Member State, the interception may continue only if the
requesting Member State:
(a) notifies a competent authority in the third Member
State of the continued interception no later than 24 hours after
first becoming aware that the subject is using the equipment within
the territory of the third Member State; and
(b) submits a request under paragraph 2(c) of Article
6 as soon as possible thereafter.
2. The continued interception shall be terminated as soon
as the third Member State so requests following notification or
the receipt of a request under paragraph 1.
Letter from Joyce Quin MP, Minister of State, Home
Office to Lord Tordoff, Chairman of the European Communities Select
Committee
I attach for information a note on the overlap between the
provisions of the draft EU Convention on Mutual Assistance in
Criminal Matters and those in the Schengen Agreement on the gradual
abolition of checks at common borders. I said that I would provide
this information when I attended the hearing of Sub-Committee
E of the House of Lords European Communities Committee on 17 December
to discuss the draft Convention.
13 January 1998
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