Anti-Terrorism Authority Under the Laws of the United Kingdom and the United States

Congressional research reportSep 7, 2006

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Prepared for Members and Committees of Congress

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This is a comparison of the laws of the United Kingdom and of the United States that govern

criminal and intelligence investigations of terrorist activities. Both systems rely upon a series of

statutory authorizations: in the case of the United States primarily the Foreign Intelligence

Surveillance Act and the Electronic Communications Privacy Act; in the case of the United

Kingdom, the Regulation of Investigatory Powers Act, the Police Act, the Intelligence Services

Act. Among other differences, the U.S. procedures rely more heavily upon judicial involvement

and supervision, while those of the UK employ other safeguards. The UK procedures afford

greater latitude to arrest, detain and supervise suspected terrorists than those available in the

United States.

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Introduction ..................................................................................................................................... 1

Police Stop and Search Powers ....................................................................................................... 2

Police Arrest Powers ....................................................................................................................... 4

Detention of Suspected Terrorists.................................................................................................... 4

Control Orders................................................................................................................................. 7

Surveillance ....................................................................................................................................11

Surveillance Under the Regulation of Investigatory Powers Act............................................ 12

Authorizations for Intrusive Surveillance ............................................................................... 15

Surveillance Commissioner’s Review of Warrants ................................................................. 16

Wiretapping and Electronic Eavesdropping............................................................................ 17

Sharing Information Intercepted ............................................................................................. 22

Parallel Police Regime Under the Police Act 1997................................................................. 23

Authorizations for Interference with Property or Wireless Telegraphy under the

Intelligence Services Act 1994............................................................................................. 24

The Security Services and Domestic Surveillance.................................................................. 25

Use of Intercepted Communications as Evidence in Court..................................................... 27

Oversight of the Interception of Communications .................................................................. 29

Complaints Procedures for Interception of Communications ................................................. 30

Acquiring Communications Data .................................................................................................. 32

Author Contact Information .......................................................................................................... 36

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This is a comparison of the law of the United States (U.S.) and United Kingdom (UK) relating to

the authority to investigate terrorism.1 It focuses primarily upon the procedures for conducting

searches and seizures including the interception of communications, arresting and detaining

suspected terrorists, and control orders restricting the activities of suspected terrorists.2

The most obvious difference between the laws of the two countries is that in the UK approval of

extraordinary authority including the issuance of warrants often remains an executive function

and in the United States the task more often falls to the courts. In addition, authority in the United

States only roughly approximates at best the power of UK officials to arrest and detain suspected

terrorists and to subject them to control orders. On the other hand, U.S. officials appear to enjoy

greater flexibility in the use of intercepted communications for evidentiary purposes.

Many of the differences can be understood in light of the reach of the Fourth Amendment to the

United States Constitution. The Fourth Amendment condemns unreasonable governmental

searches and seizures. It applies where there is a justifiable expectation of privacy3 and does not

apply there is not.4 It does not apply to consensual searches5 nor to the overseas search of the

property of foreign nationals with no substantial connection to the United States.6 The

Amendment begins with the presumption that a search or seizure is unreasonable unless

conducted pursuant to a warrant issued by a neutral magistrate and upon a showing of probable

cause to believe a crime has been committed.7

There are many circumstances, however, in which a search or seizure will be considered

reasonable notwithstanding the absence of a warrant or of probable cause or of both. Thus, border

inspections require neither warrant nor suspicion,8 nor does a procedure which allows officers to

stop and search parolees.9 Incident to a valid arrest, law enforcement officers may search a

suspect without probable cause to believe the suspect possesses evidence or a weapon.10 They

may arrest a suspect without a warrant when they have probable cause to believe he has

committed a felony,11 and may conduct a brief investigative stop with less than probable cause

when, given all of the circumstances, they have “a particularized and objective basis for

suspecting”an individual is engaged in or about to engage in criminal activity.12 When acting in

the interests of certain special needs, such as highway safety or student health and safety,

This report has been prepared under the joint auspices of the Law Library of Congress and the Congressional

Research Service.

It does not include a discussion of the National Security Agency (NSA) activities discussed in the press, since the

particulars of those activities are not publicly available.

Katz v. United States, 389 U.S. 347, 353 (1967); see also 389 U.S. at 361 (Harlan, J., concurring).

Smith v. Maryland, 442 U.S. 735, 739-41 (1979).

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).

United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990).

Katz v. United States, 389 U.S. 347, 357 (1967).

United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004).

Samson v. California, 126 S.Ct. 2193, 2202 (2006).

New York v. Belton, 453 U.S. 454, 457 (1981).

United States v. Watson, 423 U.S. 411, 423-24 (1976).

United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Singh, 415 F.3d 288, 294 (2d Cir. 2005).

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government officials may engage in warrantless, suspicionless searches.13 When acting solely in

the name of national security, government officials may not engage in warrantless searches and

seizures relating to a suspected domestic terrorist.14 Whether and to what extent they enjoy greater

latitude when focused on the activities of foreign powers and their agents is less clear.15

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The statutory basis for stop and searches by the police in the UK is contained in the Police and

Criminal Evidence Act 1984,16 which provides the police can stop and search and individual if

they have reasonable suspicion that a crime has been, is being, or is about to be committed.

Statistics show that under the provisions of this Act the police stopped black people six times

more frequently than white people and Asian people two times more frequently.17 The police were

provided with broader authority to stop and search people under the Terrorism Act 2000 that

permits officers, with authorization from a senior officer, to stop and search anyone to prevent

terrorism.18 Statistically, Asian and black people are respectively four and five times more likely

to be stopped than white people under this Act.19

These statistics, combined with the Code issued under the Police and Criminal Evidence Act and

the Home Office Stop and Search Interim Guidelines provide that while the police must “not

discriminate against members of minority ethnic groups when they exercise these powers ...

[t]here may be circumstances where it is appropriate for officers to take account of a person’s

ethnic background when they decide who to stop in response to a specific terrorist threat (for

example, some international terrorist groups are associated with particular ethnic groups, such as

Muslims).”20 This Code of Practice has given rise to the claim that the British police use ethnic

Michigan Department of State Police v. Sitz, 496 U.S. 444, 455 (1990); Vernonia School District v. Acton, 515 U.S.

646, (1995).

United States v. United States District Court (Keith), 407 U.S. 297, 321 (1972).

The Keith Court emphasized that its opinion did not intend to express any opinion as to the President’s national

security powers “with respect to activities of foreign powers or their agents.” 407 U.S. at 321-22. Congress passed the

Foreign Intelligence Surveillance Act (FISA) in response to Keith. “Before Congress enacted FISA, virtually every

circuit that addressed the issue held that there is a ‘foreign intelligence’ exception to the [Fourth Amendment’s] general

warrant requirement. See United States v. Truong, 629 F.2d 908, 913 (4th Cir. 1980); United States v. Buck, 548 F.2d

871, 875 (9th Cir. 1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir. 1974); United States v. Brown, 484 F.2d

418, 426 (5th Cir. 1974); cf. Zweibon v. Mitchell, 516 F.2d 594, 651 (D.C.Cir. 1997)(noting in dicta warrantless foreign

intelligence surveillance is unlawful).” United States v. Marzook, 435 F.Supp.2d 778, 792-93 (N.D. Ill. 2006)(cited

cases handed down after the 1978 enactment of FISA were passed on earlier law). Subsequent case law concerning

warrantless foreign intelligence surveillance apart from FISA is extremely sparse and in many respects has only begun

to develop. United States v. Bin Laden, 126 F.Supp.2d 264, 285 (S.D.N.Y. 2000); Hepting v. AT&T Corp., 439

F.Supp.2d 974 (N.D.Cal. 2006); American Civil Liberties Union v. National Security Agency, 438 F.Supp.2d 754

(E.D.Mich. 2006).

Police and Criminal Evidence Act 1984, c. 60.

Home Office, Statistics on Race and the Criminal Justice System 2003, 2004, available at http://www.cre.gov.uk/

Default.aspx.LocID-0hgnew04s.RefLocID-0hg00900c002.Lang-EN.htm.

Terrorism Act 2000, §44. The authorization can only last up to twenty-eight days, but has reportedly been

consistently renewed over the past six years. See generally Arun Kundnani, Racial Profiling and Anti Terror Stop and

Search, IRR NEWS, Jan. 31, 2006, available at http://www.irr.org.uk/2006/january/ha000025.html.

Terrorism Act 2000, §44, Home Office, Statistics on Race and the Criminal Justice System 2003, 2004, available at

http://www.cre.gov.uk/Default.aspx.LocID-0hgnew04s.RefLocID-0hg00900c002.Lang-EN.htm.

Police and Criminal Evidence Act 1984, Code A: Code of Practice for the Exercise by Police Officers of Statutory

Powers of Stop and Search, available at, http://www.homeoffice.gov.uk/docs/pacecodea.pdf and Home Office, Stop

(continued...)

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and religious profiling in their policing, a claim that both the government and the police have

actively worked to dismiss.21

The government has noted that the enactment of the recent anti-terrorism laws led to “a palpable

increase in stopping and searching of people of Asian origin in particular.”22 The government

expressed concern that tensions with the Muslim community in particular are not exacerbated,

because it is believed that the isolation and the stigmatization, perceived, or otherwise,

contributes towards the disenfranchising of Muslims, providing extremists with the opportunity to

recruit these individuals. An expert witness in a panel reviewing the use of anti-terrorism stop and

search powers has noted “one of the biggest dangers of counter-terrorism policing must be that it

will grow the very terrorism which it seeks to defeat.”23

Against this background, in the wake of the London bombing in July 2005, the Chief Constable

of British Transport Police (BTP) publicly stated: “We should not waste time searching old white

ladies. [Searches are] going to be disproportionate. It is going to be young men, not exclusively,

but it may be disproportionate when it comes to ethnic groups.”24 The government quickly

distanced itself from this remark noting that intelligence-led stop and searches should be utilized

rather than stereotyping ethnic minorities25 because “tackling terrorism is absolutely dependent on

the confidence of these communities to feel that they can come forward, give information and be

part of the fight against this threat.”26

In the United States as noted earlier, the Fourth Amendment permits parolees to be stopped and

searched without warrant or suspicion.27 And law enforcement officers may conduct a brief

investigative stop when given the circumstances they have “a particularized and objective basis

for suspecting” that criminal activity is afoot.28 Nevertheless invidious racial, ethnic, or religious

discrimination in law enforcement is unlawful,29 and the consideration of such factors standing

alone “and sometimes even in tandem with other factors, does not generate reasonable suspicion

for a stop.”30

(...continued)

and Search Action Team: Interim Guidelines, available at http://www.privacyinternational.org/issues/terrorism/library/

ukstopsearchguidance2004.pdf (last visited Apr. 12, 2006).

Mark Oliver, Blears backs away from racial profiling, Aug. 2, 2005, GUARDIAN (London) available at

http://www.guardian.co.uk/attackonlondon/story/0,16132,1540937,00.html?gusrc=rss.

Home Office, Race Relations and the Police, available at http://www.homeoffice.gov.uk/police/about/race-relations/

(last visited Apr. 12, 2006).

Metropolitan Police Authority, Progress report on MPA Stop and Search Scrutiny, Report 9, by the Commissioner,

Oct. 16, 2003, available at http://www.mpa.gov.uk/committees/eodb/2003/031016/09.htm. See also Metropolitan

Police Authority, Report of the MPA Scrutiny on MPS Stop and Search Practice, Feb. 2004, available at

http://www.mpa.gov.uk/downloads/committees/eodb/eodb-040520-05-appendix01.pdf

Metropolitan Police Authority, Community Engagement to Counter Terrorism, Report 9, Chief Executive and

Assistant, Jan. 26, 2006, available at http://www.mpa.gov.uk/committees/mpa/2006/060126/09.htm.

No Racial Profiling by Anti-Terror Police, Says Minister, TIMES (London), Aug. 2, 2005, available at

http://www.timesonline.co.uk/article/0,,22989-1717624,00.html.

Id.

Samson v. California, 126 S.Ct. 2193, 2202 (2006).

United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Singh, 415 F.3d 288, 294 (2d Cir. 2005).

U.S. Const. Amends. V, XIV; 18 U.S.C. 242.

United States v. Swindle, 407 F.3d 562, 569-70 (2d Cir. 2005) (citing United States v. Brignoni-Ponce, 422 U.S. 873,

885-87 (1975), inter alia).

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Police powers in the UK under the Terrorism Act 2000 are wide-ranging and there are concerns

over opportunities for abuse. The Act permits investigations into the resources of proscribed

organizations and the commission, preparation, or instigation of acts that are offenses under the

Act. Police can arrest individuals without a warrant based on a reasonable suspicion that they

have been involved in the preparation, instigation, or commission of acts of terrorism, regardless

of whether police believe the suspect is committing or has committed a crime.31 The government

justified this “pre-emptive power of arrest” by stating that the delay in collecting sufficient

information for an arrest warrant would, in some cases, be too late to prevent the terrorist act.

There are no federal statutory provisions in the United States comparable to the British authority

to arrest suspected terrorists. Under the Fourth Amendment, the hallmarks of a reasonable arrest

are probable cause and a warrant issued by a neutral magistrate.32 The Amendment does allow

warrantless arrests based on probable cause under some circumstances33 and permits brief

investigative stops34 and border inspections35 without a warrant and less than probable cause, but

there is nothing the equivalent of a “pre-emptive power of arrest.”36

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The government in the UK has faced the difficult task of balancing the rights of individuals,

which now have extensive statutory protection under the Human Rights Act 1998,37 with the

security of the state. The incorporation of the European Convention on Human Rights [the

ECHR] into the domestic law of the UK by the Human Rights Act 199838 altered the legal climate

of the UK and resulted in the specific prohibition of detention for the sole purpose of preventing a

crime being specifically prohibited, save in certain circumstances prescribed by law.39 While the

ECHR is not a new doctrine of law, but merely sets out the rights that individuals in Britain have

long enjoyed under the common law,40 the impact of the ECHR on the domestic laws of the UK is

evident. Cases challenging British laws are noticeable and ever increasing in number.

Terrorism Act 2000, c.11, §§ 41-43.

Katz v. United States, 389 U.S. 347, 357 (1967).

United States v. Pringle, 540 U.S. 366, 370 (2003).

United States v. Arvizu, 534 U.S. 266, 273 (2002).

United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004).

Kaupp v. Texas, 538 U.S. 626, 630 (2003) (“[W]e have never ‘sustained against Fourth Amendment challenge the

involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes

absent probable cause or judicial authorization’”)(quoting Hayes v. Florida, 470 U.S. 811, 815 (1985)).

European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4,

1950, 213 UNTS 222.

Human Rights Act 1998, c. 42.

Currently, two situations to which the prohibition does not apply are the detention for treatment and assessment of

individuals with diagnosed mental health disorders when they are believed to be a danger to themselves or the safety of

others; and detention that is disproportionate to the offense for people convicted of crimes, when it is believed that such

individuals are a threat to society.

A v Secretary of State for the Home Department, [2004] UKHL 56 ¶ 88.

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The UK has had lengthy experience in indefinitely detaining those suspected to be terrorists

without trial in Northern Ireland.41 Under the Prevention of Terrorism (Temporary Provisions) Act

1984 (PTA),42 the Secretary of State could authorize the detention of a person for up to seven

days. In 1988 the European Court of Human Rights ruled that this was a breach of article 5(3) of

the ECHR unless it was judicially authorized, resulting in the government derogating from that

article in order to lawfully retain this provision of the PTA.43 The use of these powers was

controversial and in response to increasing violence. The result of the internment of almost 2,000

predominantly Catholic men was greater civil disturbances and a “diminished respect for the rule

of law in Northern Ireland.”44 It was widely reported that the use of internment was “among the

best recruiting tools the IRA ever had.”45

It was against this background and experience that the government had to decide the most

effective, least controversial, and least likely to succumb to legal challenges in which to address

individuals whom the government suspects to be international terrorists or threats to national

security, but whom it cannot deport. This issue was tackled during the drafting of the TA, when

alternative options to derogation from the ECHR were considered. It was finally decided that

individuals could be detained for up to forty-eight hours after arrest without charge.46 Critics of

the TA regarded this provision as providing for “incommunicado detention” and unnecessary

because previously individuals detained under similar provisions were rarely charged with a

terrorist offense.47 Despite this criticism the period of detention permitted under the TA has been

extended by successive acts—from forty-eight hours to fourteen days by the Criminal Justice Act

2003 and from fourteen days to twenty-eight days by a highly contentious provision in the

Terrorism Act 2006.48

The detention under this provision, for an initial period of forty-eight hours, is then reviewed by a

judicial authority and is then renewable for seven day periods up to a maximum of twenty-eight

days, with a senior judge considering applications for detainment for the final fourteen days.49 In

order to continue the period of detention the judicial authority must be satisfied that it is

necessary either to obtain or preserve relevant evidence or permit completion of an examination

or analysis of any relevant matter with a view to obtaining evidence. The investigation connected

with the detention must also be conducted diligently and expeditiously.

Other areas of controversy under the detention powers are that police superintendents can impose

a delay on the detained person without notifying others of the person’s detention or allowing them

Prevention of Terrorism (Temporary Provisions) Act 1984, c. 8.

Id.

Brogan and others v the UK, (1989) 11 EHRR 117.

Mary O’Rawe, Ethnic Profiling, Policing, and Suspect Communities: Lessons from Northern Ireland, 2005, Open

Society Justice Initiative, at 92, available at http://www.justiceinitiative.org/ db/resource2/fs/?file_id=15799.

Former IRA Commander Jim McVeigh, quoted in M. O’Connor and C. Rumann, Into the Fire: How to Avoid

Getting Burned by the Same Mistakes Made Fighting Terrorism in Northern Ireland, 24 CARDOZO LAW REVIEW 1657,

1662 (2005).

Terrorism Act 2000, § 41.

Former IRA Commander Jim McVeigh, supra footnote 45.

The government initially wanted to extend the period of detention to a total period of ninety days in the Terrorism

Act, but to ensure the bill passed through Parliament, the government reduced this to twenty eight days and inserted a

sunset clause that this provision is to expire one year after its enactment.

Terrorism Act 2000, § 41 and sch. 8, as amended by the Terrorism Act 2006, § 24.

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to consult with a solicitor if there are reasonable grounds to believe that it would interfere with

other investigations.50

In the United States, authorities must advise an individual in custody of his right to have attorney

present during interrogation and to have one appointed if he is unable to afford one.51 A person in

custody may waive his right to the presence of counsel, but questioning must stop if the

individual asks to speak to an attorney before continuing.52

As to the detention of suspected terrorists, American law affords no counterpart, but the operation

of the material witness statute may have the same effect in some instances. Federal law permits

authorities to arrest a suspected terrorist with or without a warrant if they have probable cause to

believe that he has committed a federal felony.53 It also permits the issuance of an arrest warrant

if there is probable cause to believe that a person is a material witness to a federal offense and

will not be available when needed to testify either before the grand jury, at a trial, or in any other

criminal proceeding.54 Although an individual’s proximity to a crime may make him both a

legitimate witness and a legitimate suspect, the courts have said that a material witness warrant

may not be used as a substitute for a criminal arrest warrant.55

Those arrested under federal authority must be taken before a magistrate “without unreasonable

delay.”56 A delay of longer than 48 hours of an individual arrested without a warrant is

presumptively unreasonable as a matter of constitutional law,57 and a delay of a period as short as

two hours may be considered unreasonable if the delay is attributable to criminal investigation

rather than processing of an arrestee.58

Both those arrested on criminal charges and those arrested as material witnesses are eligible for

release under federal bail laws.59 Under the bail laws an individual arrested will either be:

released on personal recognizance; released subject to certain conditions including the execution

of a bail bond; temporarily detained pending parole revocation, deportation or exclusion; or

detained pending trial.60 An individual charged with one or more of the terrorist offenses listed in

18 U.S.C. 2332b(g)(5)(B) and punishable by a maximum term of imprisonment of 10 years or

more may be held for a hearing to determine whether any combination of conditions will be

sufficient to assure public safety and his appearance at later proceedings.61 In such cases, there is

a rebuttable presumption that no combination of conditions will reasonably assure public safety

or the later appearance of an individual arrested for various terrorist offenses.62 Although the

Terrorism Act 2000, sch. 8 ¶ 8.

Miranda v. Arizona, 384 U.S. 436, 479 (1966); Dickerson v. United States, 530 U.S. 428, 435-38 (2000).

Davis v. United States, 512 U.S. 452, 458 (1994).

U.S.Const. Amend. IV; F.R.Crim.P. 41; Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

18 U.S.C. 3144; United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003); United States v. Oliver, 683 F.2d 224,

231 (7th Cir. 1982).

United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003); In re DeJesus Berrios, 706 F.2d 355, 358 (1st Cir. 1983)

F.R.Crim.P. 5.

County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991).

United States v. Rivera, 370 F.3d 730, 734 (8th Cir. 2004).

18 U.S.C. 3142.

18 U.S.C. 3142(a).

18 U.S.C. 3144(e),(f),(g).

18 U.S.C. 3142(e).

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terrorist presumption only applies to those charged with terrorist offenses, material witnesses may

nonetheless be detained if the court determines no combination of conditions will assure public

safety and the later appearance of the witness.63

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Various approaches to solve the problem of balancing the human rights of the individuals with the

need to protect the public and national security were investigated. After acknowledging the limits

of the laws in which it could act,64 the government considered various options to replace the

preventive detention scheme, including permitting the entry in court of intercepted or wiretapped

evidence65 or entering into Memorandums of Understanding between the UK and certain

governments to ensure that, if the detainees were deported to their home countries, they would

not be subject to the death penalty or torture upon their arrival.66 The government ultimately

decided that certain aspects of the preventive detention scheme could be achieved through control

orders that would apply to both foreign and British nationals and be supplemented by Memoranda

of Understanding with monitoring bodies, ensuring these countries compliance with the terms of

these agreements. In arriving at this decision, the Secretary of State reasoned that:

There are cases in which we remain unable to prosecute. However, that does not mean that

we should do nothing to forestall suspected terrorists or to prevent them from planning,

assisting or otherwise supporting those willing to carry out attacks. The Government have

therefore decided to replace the part 4 powers [of the ATCSA] with a new system of control

orders. We intend that such orders be capable of general application to any suspected

terrorist irrespective of nationality or, for most controls, of the nature of the terrorist activity

[whether international or domestic] and that they should enable us to impose conditions

constraining the ability of those subject to the orders to engage in terrorist-related activities.

Control orders would be used only in serious cases. The controls imposed would be

proportionate to the threat that each individual posed. Such orders would be preventive and

designed to disrupt those seeking to carry out attacks [whether here or elsewhere] or who are

planning or otherwise supporting such activities. They would be designed to address directly

two of the Law Lords’ concerns: discrimination and proportionality.67

Control Orders were implemented through the Prevention of Terrorism Act 2005, with the aim of

protecting the public from the risk of terrorism by preventing individuals named in such orders

from becoming involved in, or assisting, a terrorism-related activity when prosecution of the

individual for that activity, or a criminal offense is not possible.68 The orders are preventive in

nature and designed to disrupt the activity of individuals where intelligence shows them to be a

United States v. Awadallah, 349 F.3d 42, 62-3 (2d Cir. 2003).

430 PARL. DEB., H.C. (5th ser.) (2005) 307 available at http://www.publications.parliament.uk/pa/cm200405/

cmhansrd/cm050126/debtext/50126-04.htm#50126-04 spmin0 (last visited Mar. 7, 2005). See also Lord Carlile of

Berriew, Anti-terrorism, Crime and Security Act 2001 Part IV Section 28 Review 2004, ¶ 11 available at

http://www.homeoffice.gov.uk/docs4/Part_IV_Feb_05.pdf (last visited Mar. 7, 2005).

Id.

430 PARL. DEB., H.C. (5th ser.) (2005) 307. The government focused its attention on obtaining Memoranda of

Understanding with key Middle Eastern and North African countries. See also UK Plan to Deport Terror Suspects,

BBC NEWS, Jan. 19, 2005, available at http://news.bbc.co.uk/1/hi/uk/4186457.stm (last visited Feb. 16, 2005).

430 PARL. DEB., H.C. (5th ser.) (2005) 307.

Prevention of Terrorism Act 2005, c. 2.

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threat by imposing “obligations on individuals suspected of being involved in terrorism-related

activity69 [whether domestic or international] ... [to] restrict or prevent the further involvement by

individuals in such activity.”70

The 2005 Act provides for two types of orders: those that do not derogate from the UK’s

obligations under the ECHR [hereinafter “non-derogating orders”] and those that do derogate

from the ECHR through imposing obligations that are incompatible with an individuals right to

liberty [hereinafter “derogating orders”].71

To create the most restrictive form of order, which requires derogation from the UK’s obligations

under the ECHR, the Secretary of State must file an application with the High Court. Upon

receipt of the application, the High Court must hold a preliminary hearing, which may occur

without notifying the named individual or allowing him to make representations before the court,

to determine whether there is a prima facie case to grant the order.72 The court has authority to

grant an order at this stage if a number of criteria are met, including that there is material present

that can be relied upon to establish the individual is or has been involved in terrorism related

activity and it is reasonable to impose obligations on the individual to protect the public from the

risk of terrorism.73 If the court makes the derogating order in preliminary hearing, it is then

required to hold a full inter partes hearing to either confirm, revoke or modify the obligations of

the order. These orders can be made for up to twelve months at a time, and remade after that time

period by the Secretary of State, provided the derogation from the ECHR continues.

The orders are tailored to the particular risk imposed by each individual upon the advice of the

Security Service and can be modified to adjust to the changing risks that the individual might

pose and subject suspected terrorists to conditions similar to bail or probation, such as electronic

tagging, curfews, restrictions on communications or the use of certain facilities such as the

Internet, and from associating with other individuals.74 The obligations that can be imposed in the

orders are not restricted solely to the activities that caused the original suspicion that the person

was or had been involved in terrorism-related activity, but can be any obligation aimed to prevent

involvement in any terrorism-related activity.75 There are many instances in which the courts hear

cases without the presence of the individual named in the order, or his legal representative.76 If

the individual subject to an order contravenes any obligations imposed by the order, he can be

Section 1(9) of the Prevention of Terrorism Act 2005, c. 2 defines terrorism-related activities as “one or more of the

following: (a) the commission, preparation or instigation of acts of terrorism; (b) conduct which facilitates [or gives

encouragement to] the commission, preparation or instigation of such acts, or which is intended to do so; (d) conduct

which gives support or assistance to individuals who are known or believed to be involved in terrorism-related

activity.”

Prevention of Terrorism Act 2005, c. 2, Explanatory Notes ¶ 3.

Id., § 1(2).

Id., c. 2, § 4.

Id., c. 2, § 4. The additional criteria are that “the risk arises out of, or is associated with, a public emergency in

respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights

Convention; and the obligations that there are reasonable grounds for believing should be imposed on the individual are

or include derogating obligations of a description set out in the designation order.”

Prevention of Terrorism Act 2005, c. 2, § 1(4).

Prevention of Terrorism Act 2005, c. 2, § 2(9).

The 2005 Act provides that Special Advocates, who are not responsible to the parties of the case, may be appointed

to represent the interests of the individual named in the order. Prevention of Terrorism Act 2005, c. 2, sch. 1 ¶ 7.

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arrested without a warrant and, if found guilty of an offense, may be imprisoned for a period of

up to five years and/or fined upon conviction on indictment.77

The introduction of Control Orders was inevitably subject to considerable criticism, notably that

it was the biggest threat to the civil liberty of British citizens and extension of the state’s

executive powers in over 300 years because, in certain circumstances, a citizen may be deprived

of their liberty without knowledge of the evidence presented against them.78 Individuals criticized

the structure of the British legal system, and questioned why the government did not remove the

legal constraints that prevent the prosecution of individuals for existing criminal and terrorist

offenses in the courts in the first instance, such as restrictions on the use of intercept evidence in

the courts.

The Labour government responded to these suggestions by stating that an extensive review had

concluded that the use of intercepted evidence would only produce a “modest” increase in the

number of prosecutions for serious criminal offenses but none for terrorists and argued that:

There is a widespread misconception that if we could only adduce intercept as evidence, we

would be able to prosecute those detained. However, the review of intercept as evidence

found no evidence to support this ... [the] Government do not intend to change the existing

arrangements. Intercept provides only part of the intelligence against individuals ... it does

not stand alone. Some of the material that we have in these cases is inadmissible, and other

material, while technically admissible, could not be adduced without compromising national

security, damaging relationships with foreign powers or intelligence agencies, or putting the

lives of sources at risk.79

Due to the highly political and sensitive nature of the subject matter of the 2005 Act, as well as

the circumstances in which the bill was pushed through Parliament, a sunset clause was inserted

that the provisions within the 2005 Act governing control orders will expire twelve months after

the bill was passed. The Secretary of State may, after consulting with the person appointed to

review the Act, the Intelligence Services Commissioner and the Director-General or the Security

Service, lay an order before Parliament that must be approved by a resolution of each House of

Parliament to revive the Act for an additional period of 12 months.80

To ensure that the 2005 Act is not subject to abuse, nor contravenes individual human rights

without check, the Secretary of State is required to prepare a report every three months

concerning his use of control orders and appoint an individual to review the operation of the Act.

The report is also to cover the implications on the Act of any proposals put forth by the Secretary

of State for any law relating to terrorism, as well as the extent of the Secretary of State’s use of

non-derogating control orders in urgent cases without the permission of the court.81

The system of Control Orders has already been subject to an adverse ruling by the High Court,

with the judge stating that the orders are “an affront to justice” and “conspicuously unfair.”82 The

Prevention of Terrorism Act 2005, c. 2, § 9.

Terror Law Row Explained, BBC NEWS, Mar. 12, 2005 available at http://news.bbc.co.uk/1/hi/uk_politics/

4288407.stm..

430 PARL. DEB., H.C. (5th ser.) (2005) 307.

Prevention of Terrorism Act 2005, c. 2, § 13.

Id. § 14.

Secretary of State for the Home Department v MB, [2006] WLR (D) 104 (QB).

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government is appealing this decision and has stated “the ruling will not limit the operation of the

act ... [and] we will not be revoking either the control order which was the subject of this review,

nor any of the other control orders currently in force on the back of this judgement ... Nor will the

judgment prevent the secretary of state from making control orders on suspected terrorists where

he considers it necessary to do so in the interests of national security in future.”83 As of May 2006

there have been twenty one control orders issued, and twelve remain in force.84

The government continues to face the unenviable and difficult task of balancing the rights of

individuals and maintaining democracy whilst protecting it. Inevitably, any legislation aimed at

preventing individuals from engaging in a terrorist act rather than punishing individuals for

committing such an act will be subject to considerable criticism. It is not within the realm of

“traditional justice” to punish an individual for an act not yet committed overtly. The government

has maintained that the threat it is facing is not a traditional threat, and its use of preventive

measures is necessary to maintain order and national security from an amorphous threat. The

London Times has criticized the UK’s use of these provisions by drawing a parallel with:

Totalitarian states [that] have traditionally resorted to house detention as a way to silence

dissent without the bad publicity of criminal proceedings, so creating a form of extralegal

limbo that indicates guilt on the part of a suspect without having to go to the trouble of

obtaining a conviction ... Charles Clarke has argued that house arrest is preferable to

detention in Belmarsh, but that is only a difference of circumstance, not of essence.85

The Home Secretary has continued to reiterate the paradoxical challenge that the current situation

creates and has stated that he is striving to:

Protect national security and ensure the safety and security of this country. In doing so, I

need to consider how we balance the rights of individuals against those of society; how we

ensure safety and security within a democracy without undermining the values that are at the

very heart of it.86

The United States does not appear to recognize a procedure comparable to the UK’s control

orders. The procedure is reminiscent of the conditions that may be imposed either under federal

bail laws87 or the laws governing federal probation.88 Control orders, however, are available when

there is insufficient evidence upon which to base a prosecution, while bail is predicated upon

arrest based on a determination that there is probable cause to believe that the person has

committed a crime89 and probation is predicated upon conviction.90

Vikram Dodd and Carlene Bailey, Terror Law an Affront to Justice-Judge: Control Orders Breach Human Rights,

GUARDIAN (London) Apr. 18, 2006, available at http://www.guardian.co.uk/humanrights/story/0,,1752864,00.html.

More Scrutiny of Control Orders, BBC NEWS, May 2, 2006, available at http://news.bbc.co.uk/2/hi/uk_news/

politics/4965672.stm.

Ben MacIntyre, Guilty Until Proven Guiltier, TIMES (London), Jan. 29, 2005 available at

http://www.timesonline.co.uk/article/0,,1068-1460767,00.html.

430 PARL. DEB., H.C. (5th ser.) (2005) 679.

18 U.S.C. 3142-3144.

18 U.S.C. 3561-3566.

F.R.Crim.P 4, 5.

18 U.S.C. 3561.

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Law enforcement and the Security Services in the UK have a broad variety of methods at their

disposal to investigate crimes. These methods include the interception of communications,

electronic data, and various forms of surveillance. The use of these methods are subject to a

lengthy and complex legislative regime contained in the Regulation of Investigatory Powers Act

2000 (RIPA),91 the Police Act 1997,92 and the Intelligence Services Act 1994;93 and supplemented

by the protections in the European Convention on Human Rights. Additional provisions are

supplied in the Covert Surveillance Code of Practice and the Interception of Communications

Code of Practice, which the Secretary of State is required to publish under the RIPA.94

The RIPA regulates most forms of surveillance and the interception of communications in the

UK. It was enacted to update the laws on the interception of communications and brings them

into line with technological advances. The RIPA was also enacted in anticipation of the effects of

the Human Rights Act 1998, which granted individuals an enforceable right to family life and

privacy and in response to a number of adverse rulings from the European Court of Human

Rights. The European Court of Human Rights found that the lack of regulation of surveillance

activities was in breach of article 8 of the European Convention on Human Rights (ECHR),

because the interference with the complainants’ right to private life had not occurred with a

procedure prescribed by law.95 Despite concerns over the lack of judicial involvement during the

drafting of these laws, the issuance of warrants in the UK remains an executive act; with the

government previously “explicitly reject[ing] the suggestion that the issue of a warrant should be

a judicial act.”96

In the United States, law enforcement and intelligence agencies enjoy broad authority to

investigate individuals and activities. That authority, however, is limited by court rule, and by

statutory and constitutional safeguards designed to prevent unwarranted intrusions and abuse. The

authority includes the power to conduct searches and seizures;97 to intercept wire, oral and

electronic communications;98 to demand access to stored communications and communications

records;99 to install and use pen registers and trap and trace devices;100 and to issue administrative

subpoenas including those in the form of “national security letters.”101 While law enforcement

Regulation of Investigatory Powers Act 2000, c. 23.

Police Act 1997, c.50.

Intelligence Services Act 1994, c. 13.

Regulation of Investigatory Powers Act 2000, c. 23, § 71; Regulation of Investigatory Powers (Interception of

Communications: Code of Practice) Order 2002, SI 2002/1693; and the Regulation of Investigatory Powers (Covert

Surveillance: Code of Practice) Order 2002, SI 2002/1933.

Khan v the UK [2000] 6 EHLR 6555; Malone v the UK [1984] 7 EHRR 14. See also RICHARD POWELL, AN

INTRODUCTION TO THE RIPA 2000, Part I, Mags. C.P. 5.1(9) (2001).

Regulation of Investigatory Powers Act 2000, c. 23, § 5.

U.S. Const. Amend. IV; F.R.Crim.P. 41; 18 U.S.C. 3103a; 50 U.S.C. 1821-1829.

18 U.S.C. 2510-2520; 50 U.S.C. 1801-1811.

18 U.S.C. 2701-2712.

100

18 U.S.C. 3121-3127; 50 U.S.C. 1841-1846.

101

18 U.S.C. 3486; 21 U.S.C. 876; 18 U.S.C. 2709; 15 U.S.C. 1681u; 15 U.S.C. 1681v; 12 U.S.C. 3414; 50 U.S.C.

436. Federal grand juries enjoy particularly sweeping investigative authority; grand juries have been abolished in the

UK; see generally, CRS Report 95-1135, The Federal Grand Jury, by (name redacted).

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and intelligence investigators may work cooperatively, neither Foreign Intelligence Surveillance

Act’s (FISA) interception nor its physical search authority may be invoked solely for the purpose

of a criminal investigation unrelated to a foreign intelligence offense.102

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The UK’s RIPA provides a system of authorizations for three different types of surveillance:

directed, intrusive, and covert human surveillance.103 All these forms of surveillance involve an

aspect of covertness, defined in the RIPA as when the surveillance is “carried out in a manner that

is calculated to ensure that persons who are subject to the surveillance are unaware that it is or

may be taking place.”104 Intrusive surveillance is defined in the RIPA as covert surveillance that is

conducted either by a device or a person, in relation to events occurring inside private property or

private vehicles and is the type of surveillance subject to the most stringent controls under the

RIPA.105 Covert human intelligence occurs when a source establishes or maintains any form of

relationship with a person to obtain or access information or to disclose such information

covertly, when the subject of surveillance is unaware it is occurring.106 Directed surveillance

occurs when the surveillance is covert, but not intrusive, and undertaken for a specific

investigation or operation to obtain private information about a person.107 Specifically, such

surveillance involves monitoring a person’s “movements, habits or activities by various means in

order to obtain specific information about an individual or build a profile of their character or

lifestyle” without entering onto the person’s property.108

The RIPA does not impose a requirement that public authorities obtain an authorization under its

provisions when they wishes to conduct surveillance.109 However, the Code of Practice on Covert

Surveillance110 points to the obligations that the state has under the European Convention on

Human Rights to respect family and private life, strongly recommending that an authorization be

obtained. The Code notes that where there is “no other source of lawful authority, the

consequence of not obtaining an authorization under the RIPA may be that the action is unlawful

by virtue of the Human Rights Act.”111

Due to the unique and involved nature of directed and covert human surveillance, specific

requirements must be met before an authorization will be granted. For covert human surveillance,

the requirements aim to ensure the source’s security and welfare, as well as to provide

independent oversight; that proper records are kept on the sources; and that the identity of the

102

50 U.S.C. 1806(k), 1825(k), 1804(a)(7)(B), 1823(a)(7)(B); In re Sealed Case, 310 F.3d 717, 735-36 (F.I.S.Ct. Rev.

2002).

103

Regulation of Investigatory Powers Act 2000, c. 23, § 6.

104

Id., c. 23, § 26(9)(a).

105

Id., c. 23, § 26.

106

Id., c. 23, § 26(7).

107

Id., c. 23, § 26(2) and Standing Committee F, Mar. 30, 2000, ¶ 274.

108

Investigatory Powers Tribunal, Directed Surveillance, Jan., 2005, available at http://www.ipt-uk.com/

default.asp?sectionID=1&chapter=2.5.

109

Regulation of Investigatory Powers Act 2000, c. 23, § 80.

110

The Code of Practice on Covert Surveillance, Pursuant to § 71 of the Regulation of Investigatory Powers Act 2000.

111

Id. at ¶ 2.2.

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source is only disclosed on a “need to know” basis.112 A person designated under the RIPA, which

encompasses a broad variety of persons from senior members of the security services to officials

from local authorities,113 can authorize directed and covert human surveillance if he believe that it

is proportionate and necessary:

•

in the interests of national security;

•

for the purpose of preventing or detecting crime or preventing disorder;

•

in the interests of the economic well-being of the UK;

•

in the interest of public safety;

•

for the purpose of protecting public health;

•

to collect impositions, contributions or charges payable to a government

department; or

•

for any purpose as specified in an order made by the Secretary of State laid

before Parliament and approved by a resolution in each House.114

Warrants for covert human surveillance continue for an initial period of twelve months, and three

months for authorizations for directed surveillance.115

As noted above, there is no requirement for public authorities to obtain an authorization under the

RIPA prior to conducting surveillance activities. The Home Office has issued non-statutory

guidelines that provide only Chief Constables or Assistant Chief Constables are entitled to

authorize the use of certain equipment in police surveillance operations.116 The Guidelines

provide that authorizations should only occur when all of the following criteria are met:

•

the investigation concerns serious crime;

•

normal methods of investigation must have been tried and failed, or must from

the nature of things, be unlikely to succeed if tried;

•

there is good reason to think that the use of the equipment is likely to lead to an

arrest and a conviction, or where appropriate, to the prevention of acts of

terrorism;

•

the use of equipment is operationally feasible; and

112

Regulation of Investigatory Powers Act 2000, c. 23, § 29(5).

The list of persons with authority to issue a warrant for directed and covert human surveillance is extensive and

contained in the Regulation of Investigatory Powers Act 2000, c. 23, §§ 28-30 and the Prescription of Offices, Ranks

and Provisions Order 2000, SI 2000/2417. Local authorities and certain other authorities may now use only the powers

for covert human surveillance to prevent or detect crime or disorder. Many authorities claim that this restriction has

rendered the powers obsolete because they can no longer authorize covert activities in areas that are within their remit.

Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order, S.I.

2003/3171. See also OFFICE OF SURVEILLANCE COMMISSIONERS, ANNUAL REPORT, 2005-6, H.C. 1298.

114

Regulation of Investigatory Powers Act 2000, c. 23, §§ 28-29.

115

Id., c. 23, § 43.

116

Home Office, Guidelines of 1984, referred to in Perry v the UK [2003] Crim LR 281, ¶¶ 23-4.

113

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•

the degree of intrusion into the privacy of those affected by the surveillance is

commensurate with the seriousness of the offense.117

The use of video surveillance by public authorities in public places has been subject to

considerable debate amongst privacy scholars who consider that the installation of the extensive

closed circuit television cameras (CCTV) in public places across the UK has eroded individual

privacy and is leading to a ‘big brother’ state.118 There are currently no statutory regulations on

the use of CCTV cameras, although the Home Office has produced a Code of Practice on their

operation.119

The use of CCTV, and the images they record is subject to Article 8 of the ECHR.120 The

European Court of Human Rights has noted that the “recording of the data and the systematic or

permanent nature of the record may give rise to [privacy] considerations ... [and] the compilation

of data by security services on particular individuals even without the use of covert surveillance

methods constitutes an interference with the applicants’ private lives.”121 When determining

whether video surveillance has breached Article 8, the courts consider whether the complaining

individual had a ‘reasonable expectation of privacy’ as an indicating factor whether the

surveillance breached their human rights; for example, did the actions occur in a public place or

was the information processed at a level high enough to constitute interference with the

individual’s private life or the material published in a manner greater than could be reasonably

foreseen.122 The courts have noted that even though certain acts may occur in public, there is a

“zone of interaction ... in a public context, which may fall within the scope of ‘private life.’”123

U.S. law treats covert human surveillance (confidential informants), directed surveillance

(consensual interception of communications and lawful unplanned surveillance), and video

surveillance a bit differently: no special authorization is statutorily or constitutionally required

under most circumstances. The interception of wire, oral or electronic communications with the

consent of one party to the communication constitutes one of the exceptions to the general

statutory and constitutional prohibitions against warrantless interceptions.124 There is no statutory

restriction on government surveillance within a public place. The limitations of Fourth

Amendment’s proscription on unreasonable searches and seizures only come into play when there

is a justifiable expectation of privacy associated with government’s surveillance in the form of a

visual or photographic seizure in a public place.125 The First Amendment’s restrictions on

governmental actions which have a prohibited chilling effect on the exercise of First Amendment

rights are not offended when the government’s information gathering “is nothing more than a

117

In Perry v the UK [2003] Crim LR 281, ¶¶ 24 (referring to Home Office, Guidelines of 1984).

See for example PRIVACY INTERNATIONAL available at http://www.privacyinternational.org (last visited Sept. 7,

2006).

119

Home Office, Guidelines of 1984, referred to in Perry v the UK [2003] Crim LR 281, ¶¶ 23-4.

120

The information collected by CCTV cameras is typically subject to the provisions of the Data Protection Act 1998

and must, therefore, be processed in compliance with this Act.

121

Perry v the UK [2003] Crim LR 281, ¶ 38 (referring to Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR

2000-V, and Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II).

122

Peck v the UK (no. 44647/98), judgment of 28 January 2003, ECHR 2003 and P.G. and J.H. v the UK, no.

44787/98, § 56, ECHR 2001-IX.

123

P.G. and J.H. v the UK, no. 44787/98, § 56, ECHR 2001-IX.

124

18 U.S.C. 2511(2)(c),(d); United States v. White, 401 U.S. 745 (1971).

125

United States v. Katz, 389 U.S. 347, 361 (1967); United States v. Jackson, 213 F.3d 1269, 1280-281 (10th Cir. 2000).

118

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good newspaper reporter would be able to gather by attendance at public meetings and the

clipping of articles from publications available on any newsstand.”126

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Due to its inherent invasiveness, the Home Office claims that this form of surveillance is only

used to “catch offenders suspected of serious crimes.” Authorizations for intrusive surveillance

can only be granted by the Secretary of State or senior officials designated under the RIPA.127 The

list of individuals under this provision is narrower than those designated to authorize covert or

directed surveillance and includes chief constables of the police forces; designated members of

the Security Service; the Provost Marshall of the Royal Air Force Police; designated customs

officers; and more recently, officers of the Northern Ireland Prison Service.128

The circumstances under which this form of surveillance can be authorized are necessarily

narrower than the other types of surveillance. A warrant can be authorized if the authorizing

official believes the surveillance is:

•

proportionate to what it is seeking to achieve; and

•

necessary in the interests of national security and for the purpose of preventing or

detecting serious crime or in the interests of the economic well being of the UK;

and

•

the information cannot reasonably be obtained by other means.129

The Secretary of State may also authorize intrusive surveillance upon application from a member

of any of the security services; an official of the Ministry of Defence; a member of Her Majesty’s

Forces; or an individual holding a position within a public authority that has been designated

under the RIPA. The Secretary of State must believe that the surveillance is necessary in the

interests of national security and for the purposes of preventing or detecting serious crime.130 The

Secret Intelligence Service and GCHQ can also obtain a warrant under these provisions for

directed and intrusive surveillance relating to property in the British Isles, provided that the

investigation is carried out in the interests of national security or the economic well-being of the

UK. The Security Service may act on behalf of Secret Intelligence Service and GCHQ to obtain

an authorization for a warrant in connection with a function of one of the above services provided

that the activity does relate to the support of the prevention or detection of serious crime.131 These

authorizations are effective for renewable periods of six months.132

As a matter of U.S. law, intrusive surveillance (the surreptitious capture of activities in a private

place or vehicle by person or device) is likely to implicate the Fourth Amendment unless the

search or seizure involves the property of one who has no justifiable expectation of privacy.133

126

Laird v. Tatum, 408 U.S. 1, 9 (1972).

Regulation of Investigatory Powers Act 2000, c. 23, § 32.

128

Id., c. 23, § 32; and the Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003, SI 2003/3174.

129

Regulation of Investigatory Powers Act 2000, c. 23, § 32.

130

Id., c. 23, § 41.

131

Id.

132

Regulation of Investigatory Powers Act 2000, c. 23, § 44.

133

California v. Ciraolo, 476 U.S. 207, 213 (1986); Minnesota v. Carter, 525 U.S. 83, 88-91 (1998); United States v.

(continued...)

127

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Thus for example, without a warrant the government may not use a thermal imager to monitor

activity within a home.134

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Applications for authorizations under RIPA by members of the police force, members of the

Serious Organised Crime Agency (SOCA, formerly the National Criminal Intelligence Service

(NCIS)), or a customs officer for directed or intrusive surveillance or the use of covert human

intelligence sources must also be approved by a surveillance commissioner. Written notice of this

authorization be provided to the person who granted the authorization.135

Authorizations issued upon the application of members of the police force, the SOCA or customs

officers can be quashed by a Surveillance Commissioner if he is are satisfied that, “at the time the

authorization was granted or at any time when it was renewed,” there were no reasonable grounds

for believing that the statutory criteria were met.136 A Surveillance Commissioner can also cancel

authorizations if he believes that the statutory criteria are no longer met.137 If the Surveillance

Commissioner decides to quash the authorization, he has the authority to order that any records

relating to information obtained by the surveillance after the statutory requirements were no

longer met be destroyed.138 This does not apply if the records are needed for pending criminal or

civil proceedings.139

Authorizing officers have a right of appeal to the Chief Surveillance Commissioner within seven

days of the decision by the Surveillance Commissioner to:

•

refuse to approve an authorization for intrusive surveillance;

•

quash or cancel an authorization for intrusive surveillance; or

•

order the destruction of records.140

The Chief Surveillance Commissioner can modify, quash or affirm the Commissioner’s decision.

During 2005-2006 only one appeal was lodged, based on quashing of an authorization to use an

invisible marking dye to covertly mark the property of a suspect. The Commissioner quashed the

appeal on the basis that it was speculative whether the suspect would commit a serious offense

within the meaning of the law; his decision was in turn appealed; and that appeal subsequently

dismissed.141

(...continued)

Corona-Chavez, 328 F.3d 974, 980 (8th Cir. 2003).

134

United States v. Kyllo, 533 U.S. 27, 40 (2001).

135

Regulation of Investigatory Powers Act 2000, c. 23, § 36. For further information about the surveillance

commissioner, see infra, under subheading “safeguards.”

136

Regulation of Investigatory Powers Act 2000, c. 23, § 37.

137

Id.

138

Id.

139

Id.

140

Regulation of Investigatory Powers Act 2000, c. 23, § 38.

141

OFFICE OF SURVEILLANCE COMMISSIONERS, ANNUAL REPORT, 2005-6, H.C. 1298.

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There is no comparable American procedure. The procedure in the UK, however, serves the same

purposes of the U.S. requirement that warrants be issued by a neutral magistrate—a safeguard

against abuse of executive power.

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The RIPA provides a system of authorizations in which communications can be intercepted.142 A

warrant is required for the lawful interception of communications in most circumstances in the

UK.143 Circumstances in which communications can be intercepted without a warrant include

those in which:

•

one party to the communication has consented to the intercept;

•

the provider of a postal or telecommunications service intercepts the

communication;

•

a person conducting a business, government department, or public authority

intercepts communications on their entity’s own telecommunications lines to

prevent or detect crime, ascertain facts, investigate unauthorized use of the

system, and monitor communications to determine whether they are business or

personal;144

•

the intercepted communications are those in hospitals with high security

psychiatric services, under regulations made by the Secretary of State for

interceptions in the course of lawful business practice, under prison rules, or in

state hospitals in Scotland; or

•

the interception of communication occurs on a public telecommunications system

outside the UK and the person providing the telecommunications service is

required by the law of that country to facilitate the interception.145

In the United States, a court order is required for the lawful interception of communications in

most circumstances146 and can be obtained either under the Electronic Communications Act (Title

III)147 or the Foreign Intelligence Surveillance Act (FISA).148 The circumstances in which

communications can be intercepted without an order under Title III include those in which:

142

Section 2 of the Regulation of Investigatory Powers Act 2000, c. 23 defines the interception of communications as

when, in the course of the communications transmission by a telecommunications system, a person modifies or

interferes with the system or its operation; monitors transmissions made by the telecommunications system; or

monitors transmissions by wireless telegraphy to or from apparatus contained in the telecommunications system,

resulting making some or all fo the contents of the communication available during the transmission to a person other

than the sender or the intended recipient of the communication.

143

Regulation of Investigatory Powers Act 2000, c. 23, § 1.

144

Regulation of Investigatory Powers Act 2000, c. 23, § 4 and The Telecommunications (Lawful Business Practice)

(Interception of Communications) Regulations 2000, SI 2699/2000.

145

Regulation of Investigatory Powers Act 2000, c. 23, §§ 1 and 4.

146

U.S.Const. Amend. IV; United States v. Katz, 389 U.S. 347 (1967); United States v. United States District Court,

407 U.S. 297 (1972); 18 U.S.C. 2511; 50 U.S.C. 1809.

147

18 U.S.C. 2510-2520 (originally enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968).

148

50 U.S.C. 1801-1811.

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•

one party to the communication has consented to the interception;149

•

the service provider intercepts the communication incident to rendering service,

or in order to protect the provider’s property;150

•

the interception occurs through the use of telephone equipment used in the

ordinary course of the interceptor’s business;151

•

there is no justifiable expectation of privacy in the intercepted oral

communication;152

•

an emergency exists and approval of an application is anticipated;153 or

•

the interception of communication occurs outside of the United States and in

compliance with the laws of the place where it occurs.154

The circumstances in which communications can be intercepted without an order under FISA

include those in which:

•

the President has approved interception for up to 15 days during a time war

declared by Congress;155

•

the President has approved interception for up to 1 year when the

communications are between foreign powers (not including terrorist groups) and

the communications of a U.S. person are not likely to be intercepted;156

•

an emergency exists and an application is anticipated;157

•

there is no justifiable expectation of privacy in the intercepted oral

communication;158 or

•

the interception of communication occurs outside of the United States and in

compliance with the laws of the place where it occurs.159

The UK authorization process to obtain a warrant to intercept communications differs from the

process to obtain surveillance warrants. Under the RIPA the Secretary of State160 personally issues

149

18 U.S.C. 2511(2)(c),(d); United States v. White, 401 U.S. 745 (1971).

18 U.S.C. 2511(2)(a)(I).

151

18 U.S.C. 2510(5)(a).

152

18 U.S.C. 2510(2).

153

18 U.S.C. 2518(7).

154

Neither Title III nor FISA applies to interceptions occurring outside of the United States, United States v.

Toscanino, 500 F.2d 267, 279 (2d Cir. 1974); United States v. Bin Laden, 126 F.Supp.2d 264, 272 (S.D.N.Y. 2000).

The Fourth Amendment does not apply where there is no justifiable expectation of privacy, Smith v. Maryland, 442

U.S. 735, 741-46 (1979). Nor does it apply to the overseas searches and seizures by United States agents of foreign

property, United States v. Verdugo-Urquidez, 494 U.S. 259 (1991). It does apply to the overseas searches and seizures,

attributable to agents of the United States, of the property of Americans exhibiting a justifiable expectation of privacy

with respect to the property, United States v. Juda, 46 F.3d 961, 968 (9th Cir. 1995).

155

50 U.S.C. 1809.

156

50 U.S.C. 1802.

157

50 U.S.C. 1805(f).

158

50 U.S.C. 1801(f).

159

United States v. Bin Laden, 126 F.Supp.2d 264, 272 (S.D.N.Y. 2000).

150

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warrants to intercept communications upon receipt of an application from the Director General of

any of the Intelligence Services, the SOCA, the Chief of Defence Intelligence, Police

Commissioners, Chief Constables of the Police Service in Northern Ireland, Chief Constables of

Scottish Police forces, the Commissioner of Customs and Excise, or a person that is the

competent authority of a country or territory outside the UK under a mutual assistance

agreement.161 Police Chief Constables in England and Wales may make applications for warrants

through the SOCA. With the exception of authorizations under international mutual assistance

agreements, these people all hold office under the Crown.

Except for warrants issued in response to requests under mutual assistance agreement, or in

urgent cases, the Secretary of State must personally sign the warrant. In urgent cases, a senior

official designated by the RIPA can sign a warrant, although the Secretary of State must still

personally authorize the warrant.162 In cases of warrants issued for mutual assistance agreements,

the senior official must be satisfied that the interception subject is outside the UK or the

interception is to occur in relation only to premises outside the UK.163

In cases in which a warrant is required, to ensure that the right to privacy is not arbitrarily or

unduly interfered with, the issuing authority must believe that the interception is necessary on one

of the statutory grounds and is proportionate to the aim of the surveillance, as is required under

the European Convention on Human Rights. The Code of Practice describes the test of

proportionality as “balancing the intrusiveness of the interference, against the need for it in

operational terms ... it will not be proportionate if it is excessive in the circumstances of the case

or if the information which is sought could reasonably be obtained by other means.”164 This test

must be met in every case where an authorization for a warrant is requested.

The authorization process to obtain an order to intercept communications under either U.S.

federal statute differs from the process to obtain a traditional search warrant. Under Title III, a

United States District Court issues an order to intercept communications upon receipt of an

application approved by a senior Justice Department official.165 Under FISA, federal judges

designated to act as judges of the special Foreign Intelligence Surveillance Court issue orders to

intercept communications upon receipt of an application approved by the Attorney General.166 In

urgent cases, senior Justice Department officials may authorize emergency interception pending

court approval of Title III application.167 The Attorney General enjoys similar authority under

FISA.168 The interception orders must identify the location and nature of the facilities targeted for

(...continued)

160

2 CURRENT LAW STATUTES 2000 (Christine Beesley et al eds., 2000). See also INTERCEPTION OF COMMUNICATIONS

IN THE UK, 1999, Cm. 4368 at 20 and 613 PARL. DEB., (H.L.) (5 ser.) 1487.

161

Regulation of Investigatory Powers Act 2000, c. 23, § 6.

162

Home Office, Interception of Communications Code of Practice, ¶ 2.2.

163

Regulation of Investigatory Powers Act 2000, c. 23, § 7.

164

Home Office, Interception of Communications Code of Practice, ¶ 2.5.

165

18 U.S.C. 2516, 2518. Title III also authorizes state court judges to issue interception orders upon the application of

senior state law enforcement officials when empowered to do so under a state law whose requirements are at least as

demanding as those of Title III, 18 U.S.C. 2516.

166

50 U.S.C. 1803, 1804.

167

18 U.S.C. 2518(7).

168

50 U.S.C. 1805(f).

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interception unless the efforts to thwart identification are anticipated or, in the case of intercepted

oral communications, circumstances render identification impractical.169

Before the Secretary of State in the UK can authorize a warrant to intercept communications, he

must believe that the conduct requested by the warrant is proportionate and necessary on the

grounds of being:

•

in the interests of national security;

•

for the purposes of preventing or detecting serious crime;170

•

for the purpose of safeguarding the economic well being of the UK from the acts

or intentions of individuals outside the British Isles; or

•

to give effect to an international mutual assistance agreement whose purpose is

equivalent to that of preventing or detecting serious crime.171

Before the U.S. court can authorize a Title III order to intercept communications, it must conclude

that:

•

there is probable cause to believe that an individual has committed, is

committing, or will commit one of the serious federal crimes with respect to

which an order may be authorized;172

•

there is probable cause to believe that communications relating to the crime will

be obtained through the interception;173

•

that alternative procedures have proved or are likely to prove futile or too

dangerous;174 and

•

unless thwarting efforts or impractical circumstances are anticipated, there is

probable cause to believe that the targeted facilities or location are being or will

be used in connection with commission of the offense, or are leased to or

commonly used by the targeted individual.175

Before the court can authorize a FISA order to intercept communications, it must conclude that:

•

the President has authorized the Attorney General to approve applications;176

•

the Attorney General has approved the application submitted by a federal

officer;177

169

18 U.S.C. 2518(11); 50 U.S.C. 1805.

Detecting crime is interpreted in section 81(5) of the RIPA as “establishing by whom, for what purpose, by what

means and generally in what circumstances any crime was committed; and the apprehension of the person by whom

any crime was committed.”

171

Regulation of Investigatory Powers Act 2000, c. 23, § 5.

172

18 U.S.C. 2518(3)(a).

173

18 U.S.C. 2518(3)(b).

174

18 U.S.C. 2518(3)(c).

175

18 U.S.C. 2518(3)(d).

176

50 U.S.C. 1805(a)(1).

177

50 U.S.C. 1805(a)(2).

170

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•

there is probable cause to believe that the target is a foreign power or agent of a

foreign power (foreign powers include international terrorist groups and agents of

foreign powers include international terrorists)(except that no U.S. person may be

considered based solely First Amendment protected activities);178

•

there is probable cause to believe that the targeted facilities or locations are or are

about to be used by a foreign power or agent of foreign power;179

•

adequate acquisition, retention and dissemination minimization procedures will

be followed;180 and

•

application requirements have been met.181

The warrant in the UK can apply to either one person or one premises and continues for a period

of three months. For warrants issued on the grounds of the prevention and detection of serious

crime, this period can be renewed for an additional three months; warrants issued on the grounds

of national security or economic well being of the UK can be renewed for an additional six

months. Warrants issued in urgent circumstances by a senior official are valid for five working

days from the date of issue, and may be renewed by the Secretary of State.182 With the exception

of warrants issued in urgent cases, modifications to the warrant do not affect the expiry date. The

modification of warrants issued in urgent circumstances has the effect of restarting the five day

period for which the warrant is valid.183

In the United States, Title III orders expire no later than 30 days after issuance, subject to 30 day

extensions.184 The tenure of FISA orders varies according to the character of the target, ranging

from 90 days to one year, with possible extensions of like duration.185

There is no requirement under the RIPA that the subject of the interception be notified of its

occurrence after the fact, with the Home Secretary noting that:

Disclosure of the fact of an interception warrant to anyone being intercepted would

fundamentally undermine its effectiveness ... Secrecy enables law enforcement agencies and

the intelligence agencies to best ensure protection of the public in a wide range of cases.

However, the issue and execution of interception warrants is overseen by the independent

Interception of Communications Commissioner.186

Upon expiration of the order in the United States, Title III of federal law requires notification of

individuals named in an interception order and anyone else the court finds appropriate.187 FISA

requires notification of an individual whose communications have been intercepted only when the

178

50 U.S.C. 1805(a)(3)(A), 1801(a), (b).

50 U.S.C. 1805(a)(3)(B).

180

50 U.S.C. 1805(a)(4).

181

50 U.S.C. 1805(a)(5).

182

Home Office, Interception of Communications, Code of Practice, ¶ 2.11.

183

Id., ¶ 2.12.

184

18 U.S.C. 2518(5).

185

50 U.S.C. 1805(e).

186

Home Office, Home Secretary Charles Clarke’s Letter to Simon Carr of the Independent, 2006, available at

http://press.homeoffice.gov.uk/Speeches/hs-letter-simon-carr?version=1.

187

18 U.S.C. 2518(8)(d).

179

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government intends to enter the results of the interception into evidence in a judicial or

administrative proceeding.188

There are no specific prohibitions on intercepting material of a confidential nature, such as those

subject to legal privilege, confidential personal information, or confidential journalistic material.

The Code of Practice on the Interception of Communications details additional safeguards which

provide that extra consideration should be given when an interception might involve materials of

a confidential nature and that applications for surveillance that are likely to result in the

acquisition of legally privileged materials should only be made in exceptional and compelling

circumstances.189

Neither U.S. statute, Title III nor FISA, contains a specific prohibition upon the interception of

privileged or otherwise confidential communications. Both state that privileged communications

do not lose their privileged status by virtue of interception.190

ȱ ȱ ȱ

A number of provisions in the RIPA aim to act as safeguards to ensure that any information

obtained is not abused or misused. Material intercepted under the above provisions is only to be

used, disclosed, and distributed as minimally as necessary for the purposes for which it was

authorized.191 In practice, this means that the information can be shared across, and used by, law

enforcement and intelligence agencies both in the UK and overseas through the cooperative

intelligence and information approach in the UK, which the Home Office claims has led to

“uniquely close cooperation between our law enforcement and intelligence agencies. No other

country in the world even gets close to this level of inter-agency co-operation.”192 The disclosure

of the information is limited to those who have the required security clearance; and the need to

know principle that requires “intercepted material must not be disclosed to any person unless that

person’s duties, which must relate to one of the authorized purposes, are such that he needs to

know about the material to carry out those duties.”193 Once the material is no longer needed for

the authorized purposes, it must be securely destroyed.194

In the case of Title III interceptions in the United States, law enforcement officers may use

information obtained through an interception in the performance of any of their duties rather than

merely those associated with the investigation for which the interception was authorized.195

Moreover the information may be shared with other law enforcement officers—and in the case of

188

50 U.S.C. 1806(c).

Home Office, Interception of Communications Code of Practice, ¶ 3.6.

190

18 U.S.C. 2517(4); 50 U.S.C. 1806(a).

191

Regulation of Investigatory Powers Act 2000, c. 23, § 15.

192

Home Office, Use of Communications Intercept as Evidence, available at http://security.homeoffice.gov.uk/

surveillance/interception/communications-intercept/ (last visited Sept. 1, 2006).

193

Home Office, Interception of Communications Code of Practice, ¶ 6.4.

194

Regulation of Investigatory Powers Act 2000, c. 23, § 15 and the Home Office, Interception of Communications

Code of Practice, ¶ 6.8.

195

18 U.S.C. 2517(2).

189

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foreign intelligence information, with intelligence, protective, immigration, national defense and

national security officials officers—for use in their official duties.196

Disclosure of information secured through a FISA interception is more circumspect, but

information that is not foreign intelligence information may be shared with law enforcement

officials for use in their official duties.197

The UK’s RIPA also requires that the Prime Minister appoint an Intelligence Services

Commissioner to review how the Secretary of State issues warrants for surveillance and how the

Secretary of State exercises and performs the powers and duties granted by the RIPA in relation to

the Service.198 Information obtained under these procedures are also subject to the protections and

requirements of the Data Protection Act 1998.

There is no exact replica of the UK safeguard under U.S. law, but similar benefits may follow as a

consequence of the various required reports to the public and Congress on the use of the authority

under Title III and FISA.199

ȱȱȱȱȱȱȱŗşşŝȱ

The police, the Royal Navy Regulating Branch, the Royal Military Police and the Royal Air

Force Police, customs officers, and members of the SOCA have a separate series of legislation,

augmented by the RIPA, for entry or interference with property in relation to wireless telegraphy

contained in the Police Act 1997. This provides that a Chief Constable or other authority specified

in the Police Act 1997 may issue an authorization permitting “such action ... in respect of

[property or] wireless telegraphy”200 as the authorizing officer specifies and enables the

authorizing officers to require the maintenance or retrieval of equipment or devices whose uses or

placement has been authorized by the Police Act or the surveillance provisions of the RIPA.201

The authorizing officer must believe that the action is necessary for the purposes of preventing or

detecting serious crime;202 and cannot reasonably be achieved by other means.203 Authorizing

officers are Chief Constables of police force in England, Wales or Scotland; a Chief Constable or

Deputy Chief Constable of the Police Service of Northern Ireland; the Commissioner or Assistant

Commissioner of the Police of the Metropolis; the Commission of Police for the City of London;

the Chief Constable of the Ministry of Defence Policy; the Provost Marshall of the Royal Navy

Regulating Branch, the Royal Military Police, or the Royal Airforce Police; the Chief Constable

of the British Transport Police; the Director General of the SOCA; and any customs officer

196

18 U.S.C. 2517(1), (6).

50 U.S.C. 1806(a), 1801(h); In re Sealed Case, 310 F.3d 717, 728-34 (F.I.S.Ct.Rev. 2002).

198

Regulation of Investigatory Powers Act 2000, c. 23, § 59(1-2).

199

18 U.S.C. 2519; 50 U.S.C. 1807, 1808.

200

Police Act 1997, c. 50, § 93.

201

Id.

202

Section 93 of the Police Act 1997, c. 50 defines crime as serious when it “involves the use of violence, results in

substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose, or the offense or

one of the offenses is an offense for which a person who has attained the age of twenty-one and has had no previous

convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.”

203

Police Act 1997, c. 50, § 93.

197

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designated by the Commissioners of Customs and Excise.204 Authorizations continue for an initial

period of three months and can be renewed for an additional period of three months.205

The Police Act provides that matters subject to legal privilege, confidential information and

confidential journalistic information can be subject to an authorization that permits the police to

interfere with property or wireless telegraphy.206 Except in cases of urgency, the authorization to

interfere with property that is used as a dwelling or as office premises, or interceptions of

communications that are likely to result in the knowledge of material subject to legal, journalistic

or confidential personal privilege must have the written approval of a Surveillance

Commissioner.207 The Surveillance Commissioner may only approve the authorization if he

believes that there are reasonable grounds that the statutory grounds for authorizing a warrant

have been met.208

Members of the public who believe their property or wireless telegraphy has been interfered with

by the police or other authorized bodies may file a complaint with the Investigatory Powers

Tribunal who may conduct an investigation on their behalf.209

As noted earlier, Title III governs the interception of wire, oral and electronic communications in

the United States.210 It provides a procedure for court approved interceptions for law enforcement

purposes during the course of investigations of a list of specifically designated federal and state

crimes.211 Here too interception orders are good for no more than ninety days, but are subject to

ninety day extensions.212 Individuals named in an interception order and others the court

considers appropriate are notified following the expiration of the order.213

£ȱȱ ȱ ȱ¢ȱȱȱ

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The Intelligence Service Act 1994 (ISA) granted the Secretary of State additional powers to

authorize entry on and interference with property or with wireless telegraphy upon application

from any of the three Intelligence Services.214 The property that can be interfered with “covers all

forms of property, including residential premises, private vehicles and personal possessions.”215

Due to the important role that the Intelligence Services play in safeguarding the national security

204

Id.

Id., c. 50, § 95.

206

Id., c. 50, § 97.

207

Id., c. 50, §§ 97 and 91.

208

Id.

209

The other bodies are: any UK police force, including PSNI and the police forces of HM Forces; the SOCA; Her

Majesty’s Customs and Excise; any of the intelligence services (MI5, MI6, GCHQ); the Ministry of Defence Police; or

British Transport Police.

210

18 U.S.C. 2510-2520.

211

18 U.S.C. 2516.

212

18 U.S.C. 2518(5).

213

18 U.S.C. 2518(8)(d).

214

Intelligence Service Act 1994, c. 13, § 5.

215

Investigatory Powers Tribunal, Interference with Property, Jan. 2005, available at http://www.ipt-uk.com/

default.asp?sectionID=1&chapter=3.

205

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of the UK, the requirements for an authorization under the ISA are much broader than under the

RIPA. The Secretary of State must believe that:

•

the conduct is necessary on the ground that it is likely to be of substantial value

in assisting the Security Service, Intelligence Service, or GCHQ in carrying out

any of its statutory functions, although, with the exception of the Security

Service, a warrant cannot be granted in support of the prevention or detection of

serious crime in relation to property in the British Islands;

•

the information sought cannot reasonably be achieved by other means;216 and

•

the Director General of the Service has safeguards in place, as required under the

1989 Act, which provide that only information required for the Service to carry

out its functions is obtained, and that the information obtained is only disclosed

as necessary or for the purpose of preventing or detecting serious crime.217

Warrants issued by the Secretary of State under these provisions continue for a period of six

months, unless issued by a senior official in urgent circumstances, in which case the warrant

expires on the second working day after it was issued.218

Warrants issued by the Prime Minister for the Intelligence Services or GCHQ may be reviewed

by a Commissioner appointed by the Prime Minister. The Commissioner must hold, or have held,

high judicial office and must also provide an annual report on the use of his functions to the

Prime Minister, which is laid before Parliament with “matter ... prejudicial to the continued

discharge of the functions of”219 the Security Services removed.

Members of the public who believe their property or wireless telegraphy has been interfered with

by the Intelligence Services may file a complaint with the Investigatory Powers Tribunal who

may conduct an investigation on their behalf.

In the United States, FISA permits the Attorney General to approve applications for a FISA court

order authorizing interceptions for certain foreign intelligence purposes, as noted earlier.220 The

tenure of such orders ranges from ninety days to one year depending upon the target and they

may be extended for equal intervals.221 Those whose communications are intercepted pursuant to

a FISA order are notified of that fact when the government decides to use the intercepted

communications as evidence in a judicial or administrative proceeding.222

ȱ¢ȱȱȱȱȱ

Prior to the enactment of the Security Service Act 1996, the Service could not obtain

authorization to conduct activities in connection with supporting the police forces and law

216

Intelligence Service Act 1994, c. 13, § 5.

Security Services Act 1989, c. 5, § 2(2)(a).

218

Intelligence Services Act 1994, c. 13, § 6.

219

Intelligence Services Act 1994, c. 13, § 9.

220

50 U.S.C. 1801-1811.

221

50 U.S.C. 1805(e).

222

50 U.S.C. 1806(c).

217

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enforcement agencies in the prevention and detection of serious crime if the action related to

property in the British Islands.223 This restriction was removed by the Security Service Act 1996,

which granted the Service the authority to apply to the Secretary of State to obtain a warrant to

interfere with property or wireless telegraphy on the British Isles under the same criteria as above

if:

•

the purpose is to prevent or detect serious crime;

•

in support of law enforcement agencies; and

•

the acts investigated constitutes an offense and involves the use of violence; or

results in substantial financial gain; or are conducted by a large number of

persons in pursuit of a common purpose; or the offense is one which a person

over the age of twenty one with no prior convictions could be sentenced to

imprisonment for three or more years for.224

The Secretary of State must also be satisfied that the Director General of the Security Services

has arrangements in place for the coordination of the activities of the security services with the

police and other law enforcement agencies.225 Warrants issued by the Secretary of State under

these provisions continue for a period of six months, unless issued by a senior official in urgent

circumstances, in which case, the warrant expires on the second working day after it was

issued.226

The Security Service can also obtain a warrant to interfere with property or wireless telegraphy if

it is acting on behalf of the Intelligence Service or GCHQ and the action proposed is to be

“undertaken otherwise than in support of the prevention or detection of serious crime.”227

The Security Service Act 1996 was disturbing to many individuals and civil rights organizations

as it essentially granted the Service, an agency considered to have a lack of oversight,

transparency, and democratic accountability,228 powers that were traditionally the responsibility of

the police. Lord Justice Browne-Wilkinson believed that the 1996 Act essentially granted

executive warrants229 and stated:

I am not for the carrying over of powers, which are unhappily necessary in the context of

national security, into a policing function enabling a member of the Executive to sanction

entry onto private property without prior judicial warrant. We are not just legislating for this

Government or the next ... we are actually impairing the constitutional freedoms of the

individuals of this country.230

Human rights organizations further criticized the Security Services Act, notably with regard to the

apparent lack of judicial oversight in the authorization process, stating that “a member of the

223

Intelligence Service Act 1994, c. 13, § 5(3).

Id., § 5.

225

Security Services Act 1996, c. 35, § 1.

226

Intelligence Service Act 1994, c. 13, § 6.

227

Id., § 5.

228

CLIVE WALKER, BLACKSTONE’S GUIDE TO THE ANTI-TERRORISM LEGISLATION 164 (2002).

229

Executive warrants are contrary to the constitutional principles established in Entick v. Carrington, 19 St. Tr. 1030

(1765).

230

573 PARL. DEB., H.L. (5th ser.) 1044.

224

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executive lacks the necessary independence to authorize interception by a state agency and that it

offends against the concept of the separation of powers; a senior judge would be a more

appropriate arbiter of the balance between the rights of the individual and the interests of the

state.”231

Experience in the United States was similar, but restrictions on the involvement of the

intelligence officials in purely domestic law enforcement investigations remains. Before passage

of the USA PATRIOT Act, FISA’s interception and physical search authority could only be

invoked upon certification that the acquisition of foreign intelligence information was “the

purpose” for the request.232 After enactment of the USA PATRIOT Act, such acquisition need

only be a “significant purpose” for the request,233 and the Act makes it clear that cooperation

between intelligence and law enforcement officers does not preclude certification.234 FISA

authority may not be used, however, solely for the purpose of investigating or aiding in the

investigation of criminal offenses unrelated to foreign intelligence activities.235

ȱȱ ȱȱȱȱȱȱ

Despite the expansive laws relating to the interception of communications, information obtained

in such a manner is not usable as evidence in a court of law, even if every legal requirement has

been met.236 This restriction has recently been reviewed and, despite severe criticism, notably that

from the opposition government that the use of such evidence may allow the prosecution of

suspected international terrorists,237 the government decided to maintain this prohibition. The

government stated that the disclosure of intercepted communications could undermine the

intercept capabilities and lead to their methods becoming public knowledge and thus

ineffective.238 The Home Office asserts that the main use of the findings of intercepted

communications is to help “intelligence agencies and law enforcement decide how best and

where to deploy the techniques they use to get evidence for courts such as surveillance,

eavesdropping and the use of informants.”239

A law professor in the UK has been strongly critical over the government’s decision to maintain

the ban on the use of intercept evidence in the courts, opining:

The disadvantage of the exclusionary rule ... is that a number of bad and dangerous people

cannot be tried for their crimes, although cogent and irrefutable evidence exists against

them—a ... problem that the Home Secretary wants to solve not by abolishing the ban, but by

231

JUSTICE, Regulation of Investigatory Powers Bill: Human Rights Audit, May 2000.

50 U.S.C. 1804(a)(7)(B)(2000 ed.); 1823(a)(7)(B)(2000 ed.).

233

50 U.S.C. 1804(a)(7)(B); 1823(a)(7)(B).

234

50 U.S.C. 1806(k); 1825(k).

235

In re Sealed Case, 310 F.3d 717, 735-36 (F.I.S.Ct. Rev. 2002).

236

Regulation of Investigatory Powers Act 2000, c. 23, § 17.

237

Professor J. R. Spencer, Tapping into the Telephone, N.L.J. 155.7166 (309) (2005).

238

Home Office, Security: Surveillance, Jan. 2005, available at http://security.homeoffice.gov.uk/surveillance/

communications-service-providers/146085 (last visited Apr. 10, 2006).

239

Home Office, Use of Communications Intercept as Evidence, available at http://security.homeoffice.gov.uk/

surveillance/interception/communications-intercept/ (last visited Sept. 1, 2006).

232

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abolishing the need for trials, and giving himself the legal power to put them under house

arrest without one.240

The former Director General of the Security Service (MI5) has publicly announced his reluctant

support over the continued prohibition on the use of intercept evidence in court stating:

I have reluctantly come to the conclusion that due to the changing nature of telephone

technology and the importance, during a period of change, of not sensitising terrorists and

serious criminals to particular capabilities that will be important for the future, there are

indeed good reasons not to remove the bar on the use of intercept in our courts.241

The government responded to suggestions that the ban on the use of intercept evidence be

removed by stating that the extensive review has concluded the use of intercepted evidence would

only produce a ‘modest’ increase in the number of prosecutions for serious criminal offenses but

none for terrorists.

Despite the restrictions, there are some limited circumstances in which intercept evidence can be

used as evidence. Section 18(4) of the RIPA permits the use of intercepted communication as

evidence if one party consented to the intercept. The courts have interpreted the prohibition on

using intercept evidence narrowly, holding that it only applies to communications intercepted in

the UK, permitting the admittance of intercepted communications obtained legally abroad.

Moreover, the evidentiary restrictions do not appear to extend to information obtained through

electronic bugging. The police have continued to obtain information through electronic

surveillance devices without proper authorization. In several instances, evidence obtained from

this police ‘bugging’ has been permitted as evidence in court despite judges in each cases

specifically saying that the evidence was obtained in probable or direct breach of the ECHR.242 In

one case, evidence from two co-accused obtained through an electronic surveillance device

placed in their police holding cell was permitted to be used in court, despite the fact that the coaccused had exercised their right to silence.243 The European Court of Human Rights has

provided that intelligence obtained in breach of Article 8 of the ECHR through the unlawful

installation of a listening device in a person’s home or covert listening devices in police stations is

admissible as evidence as “any breach of Article 8 is subsumed by the Article 6 duty to ensure a

fair trial.”244

In contrast to the law in the United Kingdom, in the United States, evidence lawfully secured

pursuant to either a Title III or a FISA interception order does not become inadmissible in judicial

proceedings solely by virtue of that fact.245 Yet as noted earlier, lawful interception does not strip

privileged communications of any of the privileged status they otherwise enjoy.246

240

Professor J. R. Spencer, Tapping into the Telephone, N.L.J. 155.7166 (309) (2005).

Sir Stephen Lander, Tapping and Terror, INDEPENDENT (London), Feb. 7, 2005.

242

R v Bailey [1993] All ER 513; R v Khan [1997] AC 558 and Khan v the UK (2001) EHRR 1016.

243

R v Bailey [1993] All ER 513.

244

BLACKSTONE’S CRIMINAL PRACTICE 2006, (Peter Murphy et al. eds., 2006) 2202 referring to Button [2005] Crim LR

571. See also Chalkley v the UK [2003] Crim LR 51; PG and JH v the UK [2002] Crim LR 308; Perry v the UK [2003]

Crim LR 281 and Mason [2002] 2 Cr App R 628.

245

18 U.S.C. 2517(3); 50 U.S.C. 1806.

246

18 U.S.C. 2517(4); 50 U.S.C. 1806(a).

241

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The warrant process for the interception of communications is overseen by an independent

Interception of Communications Commissioner (ICC). The ICC is responsible for ensuring that

“authorised agencies have proper processes in place, and have considered the human rights of

individuals before interception takes place;”247 and review the exercise and performance by the

Secretary of State of the powers granted upon him regarding authorizing the interception of

communications under the RIPA.248 The 2004 Annual Report on the use of the Regulatory Powers

Act to intercept communications prepared by the ICC noted that the personnel conducting

intercepts have:

... a detailed understanding of the legislation and strive assiduously to comply with the

statutory criteria ... in my view, there is very little, if any, danger that an application which is

defective in substance will be placed before the Secretary of State ... [the agencies] welcome

the oversight of the Commissioner, both from the point of view of seeking his advice, which

they do quite frequently, and as a reassurance to the general public that their activities are

overseen by an independent person who has held high judicial office.249

Interference with property by the Intelligence Services is subject to oversight by the Intelligence

Services Commissioner (ISC), currently the Right Honourable Sir Peter Gibson. Both these

Commissioners are appointed by, and report to, the Prime Minister.

The Office of Surveillance Commissioners further oversees any interference with property by the

Police under Part III of the Police Act 1997 as well as “surveillance and the use of Covert Human

Intelligence by all organizations bound by RIPA, with the exception of the Intelligence

Services”250 which, as noted above are overseen by the Intelligence Services Commissioner. The

OSC has a budget of over one million pounds (approximately $1.8 million) and reviews

authorizations under RIPA by the Police, SOCA and Her Majesty’s Customs that involves entry

on, or interference with the property or wireless telegraphy without the consent of the owner.251

Surveillance Commissioners are appointed by the Prime Minister for a term of three years,

although they may be removed earlier by a resolution from each House of Parliament that has

been approved by the Scottish Parliament. The Surveillance Commissioners must either hold, or

have held, a high judicial office, whilst Assistant Surveillance Commissioners either hold, or have

held, office as a Crown Court or Circuit Judge; Sheriffs in Scotland or County Court Judges in

Northern Ireland.252

There is no exact replica of the UK safeguard under U.S. law, but similar benefits may follow as a

consequence of the issuing court’s continued authority over interception orders it issues253 and of

247

Home Office, Checks on Surveillance, available at http://www.homeoffice.gov.uk/security/surveillance/regulations

(last visited Sept. 1, 2006).

248

Regulation of Investigatory Powers Act 2000, c. 23, § 57(2).

249

INTERCEPTION OF COMMUNICATIONS COMMISSIONER, REPORT OF THE INTERCEPTION OF COMMUNICATIONS

COMMISSIONER FOR 2004, 2004-5, HC 549.

250

Investigatory Powers Tribunal, Additional Oversight, May. 2006, available at http://www.ipt-uk.com/

default.asp?sectionID=8.

251

Office of Surveillance Commissioners, Establishment and Responsibilities, 2003, available at

https://www.surveillancecommissioners.gov.uk/about_establishment.html.

252

Regulation of Investigatory Powers Act 2001,c. 23, § 65 and the Police Act 1997, c. 50, § 91.

253

18 U.S.C. 2517, 2518.

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the various required reports to the public and Congress on the use of the authority under Title III

and FISA.254

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There is no statutory requirement for any body that has the authority to intercept communications

through a warrant to disclose these activities to any person subject to the intercept. Despite the

lack of requirements to notify subjects of the intercept, a body was established to address

complaints by members of the public over any acts the person believes are “inappropriate

interception activities by any of the intelligence services, and in some circumstances, by public

authorities.”255 The complaints are investigated by an Investigatory Powers Tribunal (IPT),256

established under Part IV of the Regulation of Investigatory Powers Act 2000, and governed by

the Investigatory Powers Tribunal Rules 2000.257 In 2004, the IPT received ninety new

applications and completed investigations into forty nine applications, at no time concluding that

there had been a contravention of RIPA or the Human Rights Act 1998.258

Members of the IPT are appointed by letters patent by the Queen for five year terms with no

restriction on re-appointment and must be senior members of the legal profession, with the

president and vice president either holding or previously holding high judicial office.259 There are

currently eight members on the IPT. The RIPA further regulates: “who may be appointed a

member of the Tribunal; the jurisdiction of the Tribunal; the obligations of organizations and

individuals in providing information to the Tribunal; the right of the Secretary of State to make

Rules regarding the Tribunal; and the disclosure of information aspects of any hearings deemed

necessary by the Tribunal notification to the complainant.”260

The IPT’s role is not to inform complainants whether their telephones have been tapped or

whether they have been subject to other forms of surveillance activity. Its role is to determine

whether the relevant legislation has been complied with and whether the organizations with

authority under the legislation have acted reasonably. If complaints are upheld, the IPT does have

discretion to disclose the details of any conduct undertaken to the complainant; however, for

those not upheld, no information is disclosed regarding whether or not the complainant has been

subject to any interception or surveillance activities.261

254

18 U.S.C. 2519; 50 U.S.C. 1807, 1808.

Home Office, Checks on Surveillance, available at http://www.homeoffice.gov.uk/security/surveillance/regulations

(last visited Sept. 1, 2006).

256

The Investigatory Powers Tribunal, PO Box 33220, London, SW1H 9ZQ, Tel: 011-44-207-035-3711 “The IPT

replaced the Interception of Communications Tribunal, the Security Service Tribunal, the Intelligence Services

Tribunal and the complaints provision of Part III of the Police Act 1997 (concerning police interference with property)

in October 2000.” Investigatory Powers Tribunal, Legal Provisions, Jan. 2005, available at http://www.ipt-uk.com/

default.asp?sectionID=5.

257

The Investigatory Powers Tribunal Rules 2000, SI 2000/2665.

258

INTERCEPTION OF COMMUNICATIONS COMMISSIONER, supra footnote 250, at ¶ 37.

259

Investigatory Powers Tribunal, Structure of the Tribunal, Jan. 2005, available at http://www.ipt-uk.com/

default.asp?sectionID=7.

260

Id.

261

Investigatory Powers Tribunal, FAQs, Jan. 2003, available at http://www.ipt-uk.com/

default.asp?sectionID=FAQ&Q=1.

255

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The IPT investigates allegations by members of the public who believe that action has been taken

against themselves, their property or communications by an organization that has been granted

authorization to conduct such activities by the Regulation of Investigatory Powers Act. In reality,

this is the only forum in which the activities of the Security Services can be questioned by

members of the public and, as such, it has a broad remit regarding the scope of conduct it can

investigate.

In cases where members of the public suspect that their communications have been intercepted or

that they have been subject to surveillance by certain bodies,262 the IPT can investigate whether

the requirements and conditions for the issuance of a warrant to intercept communications have

been met; and whether that the proper authorization has been sought and approved throughout the

interception process.263 Under the RIPA, the organizations responsible for issuing authorizations

are required to provide the IPT with information relating to the complainant.264 Additionally, the

IPT can “demand clarification or explanation of any information provided, order an individual to

give evidence in person, inspect an organization’s files, or take any other action it sees fit.”265 No

charge is made to complainants for the investigation of their allegations, with the IPT’s resources

being provided for by the government.

If evidence from the IPT’s investigation leads to a determination, based on the principles of

judicial review, that the RIPA has been contravened and that the organization has not acted

reasonably it can uphold the complaint and has the discretion take “remedial measures such as the

quashing of any warrants, destruction of any records held or financial compensation, may be

imposed at the Tribunal’s discretion.”266 If the IPT does not find that the legislation has been

contravened or finds that the organization has acted reasonably, it will not uphold a complaint.

The IPT states that not upholding a complaint may mean that “any conduct has been properly

authorised and guidelines complied with, or that the Tribunal are satisfied that the conduct

complained of has not taken place.”267

262

The bodies which might be believed to have performed activities in relation to the interception of communications

are: any of the Intelligence Services; the Serious Organized Crime Agency (SOCA); the Metropolitan Police; the Police

Service for Northern Ireland (PSNI); a Scottish police force; H.M. Customs & Excise (HMC&E); or one of H.M

Armed Forces. If the individual believes that his communications have been intercepted by another body, the

appropriate authority to contact is the police. The bodies contacted to investigate whether activities have been

committed in relation to intrusive surveillance are: any UK police force, including PSNI and the police forces of HM

Forces; the SOCA; Her Majesty’s Customs and Excise; any of the intelligence services; the Ministry of Defence Police;

or the British Transport Police.

263

Investigatory Powers Tribunal, Interception of Communications, Jan. 2005, available at http://www.ipt-uk.com/

default.asp?sectionID=1&chapter=1. In order to commence an investigation, the IPT requires the complainants name,

address, date of birth, name of the organization the claim relates to, telephone numbers, all postal and e-mail addresses

(for allegations of interception of telecommunications) and various details of the conduct complained about. Only the

name, address and date of birth is revealed to the organization during the IPT’s initial investigation to “to enable record

searches to be made to see if any information is held.” Further information is only released if the IPT is granted

permission by the complaining party to do so; however, the IPT notes that it will be unable to “conduct as thorough an

investigation if [the complainant does] not consent to these details being disclosed.” Investigatory Powers Tribunal,

How to Complain to the Tribunal, Apr. 2005, available at http://www.ipt-uk.com/default.asp?sectionID=3.

264

Regulation of Investigatory Powers Act 2000, c. 23, § 81 and the Investigatory Powers Tribunal, How to Complain

to the Tribunal, Apr. 2005, available at http://www.ipt-uk.com/default.asp?sectionID=3.

265

Regulation of Investigatory Powers Act 2000, c. 23, § 81, and the Investigatory Powers Tribunal, FAQ’s, Jan. 2003,

available at http://www.ipt-uk.com/default.asp?sectionID=FAQ&Q=1.

266

Investigatory Powers Tribunal, How to Complain to the Tribunal, Apr. 2005, available at http://www.ipt-uk.com/

default.asp?sectionID=3.

267

Id.

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In the United States, Title III requires that individuals named in an interception order be notified

after the order has expired.268 Unlawful interception may result in suppression of any resulting

evidence269 and unlawful interceptions may expose offenders to criminal, civil and administrative

sanctions.270

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The RIPA provides for the lawful acquisition and disclosure of communications data in specified

circumstances. The definition of communications data was subject to a great deal of

Parliamentary debate as the requirements to obtain authorization, and the list of those who can

request an authorization, are not as stringent as for surveillance or the interception of

communications. Communications data does not include the content of the communication, but

the information that relates to the use of a communication service, such as telephone records

(including the number called, duration of the call); Internet records (including sites visited, the

sender, recipient, date and time of email messages); and information on the individual using the

service held by the operator, such as subscriber information.271

An authorization to obtain communications data can only be obtained if it is necessary:

•

in the interests of national security or the economic well being of the UK;

•

for the purposes of preventing or detecting crime or preventing disorder;

•

in the interests of public safety;

•

for assessing or collecting of any tax, duty, levy or other imposition; or

•

to protect public health or, in an emergency, to prevent the death, injury or

damage to an individual’s physical or mental health, or mitigate such damage.272

The class of officials who can grant authorization to obtain communications data is much broader

than in the other areas of surveillance, and authorization can be “granted internally by an official

in the relevant public authority [with] no limitation on those who may apply for authorization.”273

A controversial aspect of the RIPA is the requirement that providers of public communications

services must maintain the capability to intercept communications and retain communications

data.274 Communications providers, particularly Internet Service Providers, considered that

maintaining such a capability would be costly and infringe upon the privacy of their customers.

The RIPA does place a duty on the Secretary of State to make contributions, where appropriate, to

the costs incurred by postal and telecommunications operators when complying with an order to

268

18 U.S.C. 2518(8)(d).

18 U.S.C. 2518(10); 50 U.S.C. 1806(g).

270

18 U.S.C. 2511, 2520, 2712; 50 U.S.C. 1809.

271

RIPA §22(4). See also Home Office, Security: Surveillance, available at http://security.homeoffice.gov.uk/

surveillance/access-to-data/definition-communications-data/ (last visited Apr. 10, 2006).

272

Regulation of Investigatory Powers Act 2000, c. 23, § 22(2).

273

2 CURRENT LAW STATUTES 2000, (Christine Beesley et al. eds., 2000) and Regulation of Investigatory Powers Act

2000, c. 23, § 22.

274

Regulation of Investigatory Powers Act 2000, c. 23, § 12.

269

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retain or disclose communications data.275 The ATCSA further expanded these duties, requiring

communications service providers to retain communications data after the period necessary for

business purposes for national security and crime prevention so that it can be accessed under the

Regulation of Investigatory Powers Act when necessary.276 The provision has been criticized as

giving police the ability to obtain a “complete dossier on private life.”277 These requirements

appear to soon become standard and more stringent with the passage of an EU Directive,

spearheaded by the UK, which mandates communications providers not just provide the ability to

retain but actually retain communications data for up to two years as a law enforcement aid.278

The comparable provisions under the laws of the United States permit law enforcement and

intelligence access to such communications data—and in some instances to stored

communications content—under several schemes. The procedural requirements for law

enforcement access to stored wire or electronic communications and transactional records deal

with two kinds of information—often in the custody of the telephone company or some other

service provider rather than of any of the parties to the communication—communications records

and the content of electronic or wire communications. Law enforcement officials are entitled to

access:

•

with the consent of the one of the parties;279

•

on the basis of a court order or similar process under the procedures established

in Title III/ECPA;280

•

in certain emergency situations;281 or

•

under one of the other statutory exceptions to the ban on service provider

disclosure.282

Section 2703, which affords law enforcement access to the content of stored wire and electronic

communications, distinguishes between recent communications and those that have been in

electronic storage for more than six months. Government officials may gain access to wire or

electronic communications in electronic storage for less than 6 months under a search warrant

issued upon probable cause to believe a crime has been committed and the search will produce

evidence of the offense.283

275

Id., § 24.

Id., § 102.

277

Britain’s Al Qaeda Connections, Jan. 29, 2002, available at http://news.bbc.co.uk/1/hi/uk/1775683.stm, and supra

footnote 153, at 157.

278

Wendy M. Grossman, Will logging your email combat terrorism in Europe? GUARDIAN (London) Jan. 12, 2006,

available at http://technology.guardian.co.uk/weekly/story/0,16376,1683944,00.html.

279

18 U.S.C. 2702(b)(3),(c)(2).

280

18 U.S.C. 2702(b)(2), (c)(1).

281

18 U.S.C. 2702(b)(8),(c)(4).

282

18 U.S.C. 2702(b)(1),(4),(5),(6),(7); (c)(3).

283

18 U.S.C. 2703(a). The 21st Century Department of Justice Appropriations Authorization Act, 116 Stat. 1822

(2002), amended section 2703 to permit execution of the warrant by service providers and others without requiring the

presence of a federal officer, 18 U.S.C. 2703(g)(“Notwithstanding section 3105 of this title, the presence of an officer

shall not be required for service or execution of a search warrant issued in accordance with this chapter requiring

disclosure by a provider of electronic communications service or remote computing service of the contents of

communications or records or other information pertaining to a subscriber to or customer of such service”), see United

States v. Bach, 310 F.3d 1063 (8th Cir. 2002)(the Fourth Amendment does not require the presence of a federal officer

(continued...)

276

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The government must use the same procedure to acquire older communications or those stored in

remote computer storage if access is to be afforded without notice to the subscriber or

customer.284 If government officials are willing to afford the subscriber or customer notice or at

least delayed notice, access may be granted under a court order showing that the information

sought is relevant and material to a criminal investigation or under an administrative subpoena, a

grand jury subpoena, a trial subpoena, or court order.285 Under the court order procedure, the

court may authorize delayed notification in ninety day increments in cases where

contemporaneous notice might have an adverse impact.286 Government supervisory officials may

certify the need for delayed notification in the case of a subpoena.287 Traditional exigent

circumstances and a general inconvenience justification form the grounds for delayed

notification, i.e.:

•

danger to life or physical safety of an individual;

•

flight from prosecution;

•

destruction of or tampering with evidence;

•

intimidation of potential witnesses; or

•

seriously jeopardizing an investigation.288

Comparable, if less demanding, procedures apply when the government seeks other customer

information from a service provider (other than the content of a customer’s communications). The

information can be secured:

•

with a warrant;

•

with a court order;

•

with customer consent;

•

with a written request in telemarketing fraud cases; or

•

with a subpoena in some instances.289

Most customer identification, use, and billing information can be secured simply with a subpoena

and without customer notification.290

Intelligence investigators have access to customer communications data under two procedures.

First, there is the FISA business record or tangible item authority.291 Prior to the USA PATRIOT

Act senior FBI officials could approve an application to a FISA judge or magistrate for an order

(...continued)

when technicians execute a search warrant on a service provider’s server).

284

18 U.S.C. 2703(a), (b)(1)(A), (2).

285

18 U.S.C. 2703(b)(1)(B), (d).

286

18 U.S.C. 2705(a)(1)(A), (4).

287

18 U.S.C. 2705(a)(1)(B), (4).

288

18 U.S.C. 2705(a)(2), (b).

289

18 U.S.C. 2703(c)(1),(3).

290

18 U.S.C. 2703(c)(2),(3).

291

50 U.S.C. 1861.

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authorizing common carriers, or public accommodation, storage facility, or vehicle rental

establishments to release their business records based upon certification of a reason to believe that

the records pertained to a foreign power or the agent of a foreign power.292 The USA PATRIOT

Act and later the USA PATRIOT Improvement and Reauthorization Act temporarily rewrote the

procedure.293 In its temporary form, it requires rather than authorizes access; it is predicated upon

relevancy rather than probable cause; it applies to all tangible property (not merely records); and

it applies to the tangible property of both individuals or organizations, commercial and

otherwise.294 It is limited, however, to investigations conducted to secure foreign intelligence

information or to protect against international terrorism or clandestine intelligence activities.295

Recipients are prohibited from disclosing the existence of the order, but are expressly authorized

to consult an attorney with respect to their rights and obligations under the order.296 They enjoy

immunity from civil liability for good faith compliance.297 They may challenge the legality of the

order and/or ask that its disclosure restrictions be lifted or modified.298 The grounds for lifting the

secrecy requirements are closely defined, but petitions for reconsideration may be filed

annually.299 The decision to set aside, modify or let stand either the disclosure restrictions of an

order or the underlying order itself is subject to appellate review.300

As addition safeguards, Congress:

•

insisted upon the promulgation of minimization standards;301

•

established use restrictions;302

•

required the approval of senior officials in order to seek orders covering the

records of libraries and certain other types of records;303

•

confirmed and reenforced reporting requirements;304 and

•

directed the Justice Department’s Inspector General to conduct an audit of the use

of the FISA tangible item authority.305

292

50 U.S.C. 1862 (2000 ed.).

Under section 102(b) of the USA PATRIOT Improvement and Reauthorization Act, the FISA tangible items

provisions revert to their pre-USA PATRIOT Act form on December 31, 2009, except with regard to foreign

intelligence investigations initiated before that date or “any particular offense or potential offense that began or

occurred before” that date, P.L. 109-177, §102(b), 120 Stat. 195 (2006).

294

50 U.S.C. 1861(a),(b),(c).

295

50 U.S.C. 1861(a).

296

50 U.S.C. 1805(d).

297

50 U.S.C. 1861(e).

298

50 U.S.C. 1861(f)(1), (2)(A), (2)(B).

299

50 U.S.C. 1861(f)(2)(C), (D).

300

50 U.S.C. 1861(f)(3),(4),(5).

301

50 U.S.C. 1861(g); see also 50 U.S.C. 1861(c)(1).

302

50 U.S.C. 1861(h).

303

50 U.S.C. 1861(a)(3).

304

50 U.S.C. 1862.

305

P.L. 109-177, §106A, 120 Stat. 200-2 (2006).

293

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The second, and perhaps more likely, avenue affords access to communications records through a

“national security letter.”306 The national security letter procedure allows senior Federal Bureau of

Investigation (FBI) officials and the heads of FBI field offices to request service providers to

supply the name, address, length of service, and local and long distance toll billing records of a

person or entity upon certification that the information is relevant to an investigation to protect

against international terrorism or espionage.307 The letter may include a ban on disclosure of the

fact the information has been requested, and the letter’s demands are judicially enforceable and

reviewable.308 Addition safeguards include periodic reports to Congress and an audit by the

Department of Justice’s Inspector General.309

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(name redacted)

Senior Specialist in American Public Law

[redacted]@crs.loc.gov, 7-....

306

18 U.S.C. 2709.

18 U.S.C. 2709(b).

308

18 U.S.C. 2709(c); 28 U.S.C. 3511.

309

18 U.S.C. 2709(e); P.L. 109-177, §§118, 119, 120 Stat. 217, 219 (2006).

307

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