Letter from Kate Hoey MP to Lord Tordoff
Thank you for your letter of 29 October in which
you seek clarification on a number of points about the "service
provider solution" for the interception of satellite telephones.
I should also like to take this opportunity to inform you of the
latest position on the interception provisions in the draft Convention.
In answer to your first question, you will be
reassured to know that the text of the interception provisions
in Article 12 of the Convention remains broadly consistent with
the approach endorsed in your Committee's report "Mutual
Assistance in Criminal Matters" (14th Report 1997-98).
I enclose for your information a copy of the Council document
JUSTPEN 108 which includes the latest text of the Convention (in
accordance with normal practice, we have removed the references
to the negotiating positions of individual Member States).
SCOPE OF
THE CONVENTION
We had hoped that the interception provisions
could be agreed quickly. Unfortunately, difficulties have arisen
over the desire of other Member States to extend the scope of
the interception provisions to situations where no mutual legal
assistance is required. As a result, there is no prospect that
there will be agreement on a final text at the Justice and Home
Affairs Council on 3-4 December (although there are other outstanding
issues on data protection, the jurisdiction of the European Court
of Justice and the territorial application of the Convention).
The Council will be addressing a number of questions raised in
the Working Group and now included in JUSTPEN 108. This letter
explains the position which we shall be taking on these questions.
We have always been very reluctant to extend
the scope of the Convention in the way favoured by the other Member
States. We take the view that the purpose of the Convention is
to provide for mutual legal assistance, not to regulate the use
of interception within the EU. We foresaw that attempts to regulate
interception in this manner would inevitably highlight differences
between Member States' own domestic legislation. That has proved
to be the case, the fault line running between the other Member
States, which share broadly comparable legal regimes, and the
UK, where our law and practice has developed along different lines.
The main difficulties arise in connection with
Article 13, which would oblige an intercepting Member State to
inform another Member State whenever the target of an interception
is on its territory even where no technical assistance is required
from the other Member State.
One of the difficulties which has been discussed
in the Working Group concerns whether these obligations (indeed,
the Convention as a whole) would apply to the operations of Member
States' security and intelligence agencies. The consensus appears
to be that it should not. The other Member States are confident
that, in their cases, this objective is secured by the language
of the Convention which refers to judicially authorised interception
"in the framework of a criminal investigation". Their
security and intelligence agencies undertake interception either
under administrative authorisation (eg by the Interior Minister)
or under judicial warrant issued in circumstances not involving
a "criminal investigation" (eg in the context of national
security).
The problem for us is that the Convention, as
presently drafted, would apply to the UK's security and intelligence
agencies. Our law does not permit us to make the kinds of distinctions
described above. Our interception legislation applies the same
regime to law enforcement, security and intelligence agencies
regardless of the purpose for which the warrant is issued. For
example, the Security Service may obtain a warrant on the grounds
that it is necessary in the interests of national security. Or
it may obtain a warrant in pursuit of its statutory function to
support the law enforcement agencies in the prevention and detection
of serious crime. In each case the law and procedures are the
same.
As a matter of principle, we think it is entirely
inappropriate that the draft Convention should have the effect
of regulating interception by security and intelligence agencies,
or interceptions related to national security (Question E(1) in
JUSTPEN 108). We have negotiated Article 12 on the understanding
that it would apply only to interception warrants issued to the
police and Customs and Excise for the purpose of the prevention
and detection of serious crime. We are negotiating Article 13
on the same basis.
PRACTICAL IMPLICATIONS
IN BORDER
AREAS
Article 13 also fails to take account of operational
and technical realities. Mobile phone systems do not respect national
borders. There is inevitably an overlap in border areas in which
it is possible to use one Member State's national network whilst
being physically located on the territory of another Member State.
Article 13 would have the effect of placing
an obligation on law enforcement agencies to provide details of
an interception to a visited Member State even when the target
is on its territory for a very short period. In operational situations,
this could prove very bureaucratic and burdensome. There is also
little to be gained by informing the visited Member State in such
circumstances. It could be impossible for it to react before the
target of the interception leaves its territory.
The UK is therefore negotiating to minimise
the burden on its law enforcement agencies by seeking an exemption
from the duty to notify where the interception is taking place
on Member States' own national networks and the target of an interception
is on the territory of another Member State for fewer than 24
hours (Question E(2) in JUSTPEN 108).
RIGHTS OF
THE VISITED
MEMBER STATE
Article 13 allows the visited Member State to
refuse to allow the interception of a target on its territory
where it would be contrary to fundamental principles of national
law. It is not clear to us what is meant by fundamental principles
of national law. We have therefore argued that, if the Convention
is to regulate interception where no technical assistance is required,
this should be consistent with the test of national law in Article
12 (Question E3(a) in JUSTPEN 108).
There is no consensus in the Working Group on
whether the visited Member State should be in a position to impose
restrictions on the use of material already intercepted. This
is a difficult issue. The intercept material is likely to have
been used operationally as soon as it was received. The UK is
negotiating on the basis that it could accept a prohibition on
the use of such intercept material as evidence (Question E3(b)
in JUSTPEN 108).
RECORDING AND
SUBSEQUENT TRANSMISSION
The UK does not record intercept material for
evidential purposes. An obligation to do so would place a considerable
resource burden on the UK's law enforcement agencies. We are therefore
negotiating the text on the basis that there should be no obligation
to record the intercepted communication unless the requested Member
State is unable to provide immediate transmission. In practice,
we think it is very unlikely that we would be unable to provide
immediate transmission. We do not think there should be an obligation
on the requested Member State to record the intercepted communications
simply because the requesting Member State has not invested in
the simple technical equipment necessary to receive the interception
in real-time (Question E(4)(f) in JUSTPEN 108).
THE SERVICE
PROVIDER SOLUTION
You will note from JUSTPEN 108 that discussions
on the service provider solution are still at an early stage.
However, I will do my best to answer the questions in your letter
of 29 October.
As I said in my letter of 21 September, the
service provider solution will apply only to the interception
of targets on the territory of the intercepting Member State.
Given that no technical assistance is required from the Member
State with the satellite base station, the interception will be
conducted in the same way as if the target is using a normal mobile
phone. The system will automatically terminate the interception
if the target moves outside the territory of the intercepting
Member State. In the UK, we will apply the same safeguards, oversight
and complaints procedures as exist for interception by public
telecommunications operators generally.
Discussions on the service provider solution
do not, at present, envisage interception occurring outside the
territory of the intercepting Member State. There are two options,
both of which are consistent with the approach endorsed by the
Committee.
First, interception of a target in another Member
State could occur at the satellite base station as previously
envisaged under the provisions of Article 12 and subject to the
existing safeguards. Secondly, it is possible to imagine all Member
States having ownership of interception of satellite telephones
on their territory by ensuring that the technical systems allow
interception only via the service provider (in effect, each Member
State would become a requested Member State for interception on
its territory). This would ensure that the "double barrier"
would operate to ensure that interception occurs only when the
national law of the requesting and requested Member State is satisfied.
You also expressed concern about the resource
implications of imposing the service provider solution on satellite
operators. Article 14 of the latest text of the Convention places
the responsibility for meeting the costs incurred by telecommunications
operators with the requesting Member State. Nevertheless, I should
emphasise that the Presidency has not proposed that the service
provider solution for interception should be a pre-condition for
establishing a satellite ground station within the EU. Indeed,
this solution is presently being offered only by Iridium. We do
not anticipate that the Iridium solution will have significant
resource implications for the UK.
Finally, you also ask whether the UK could accept
that we should have no involvement in or control over intercepts
originating outside the UK. This would depend on the nature of
the remote access system at the satellite base station. We would
be willing to consider allowing other Member States to make use
of any service provider solution offered by a satellite operator
on UK territory, but only for the purpose of intercepting targets
on the territory of the intercepting Member State.
I am copying this letter to Jimmy Hood (Chairman
of the Commons European Legislation Committee) and Chris Mullin
(Chairman of the Home Affairs Select Committee). I am also sending
a copy to Tom King (Chairman of the Intelligence and Security
Committee) given the references to interception by the security
and intelligence services in JUSTPEN 108.
30 November 1998
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