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Models for Surveillance and Interception of Communications Worldwide

Posted by Bedavyasa Mohanty at Jul 02, 2014 11:10 PM |
This is an evaluation of laws and practices governing surveillance and interception of communications in 9 countries. The countries evaluated represent a diverse spectrum not only in terms of their global economic standing but also their intrusive surveillance capabilities. The analysis is limited to the procedural standards followed by these countries for authorising surveillance and provisions for resolving interception related disputes.
Sl. No. Country Legislation Model
1. Australia Telecommunications (Interceptions and Access) Act, 1979
  • Governs interception of communications
  • Relevant provisions: S. 3, 7, 6A, 34, 46
Surveillance Devices Act, 2004
  • Establishes procedure for obtaining warrants and for use of surveillance devices
  • Relevant Provisions: S.13, 14
  • Authorisation for surveillance is granted in the form of a warrant from a Judge or a nominated member of the Administrative Appeals Tribunal
  • The warrant issuing authority must be satisfied that information obtained through interception shall assist in the investigation of a serious crime
  • The Acts provide a list of prescribed offences for which interception of communication may be authorized
  • The Acts also specify certain federal and state law enforcement agencies that may undertake surveillance
2. Brazil Federal Law No. 9,296, 1996:
  • Regulates wiretapping
  • Authorisation for interception is granted on a Judge’s order for a period of 15 days at a time
  • Interception is only allowed for investigations into serious offences like drug smuggling, corruption murder and kidnapping
3. Canada Criminal Code, 1985
  • Governs general rules of criminal procedure including search and seizure protocols
  • Relevant Provision: §§ 184.2, 184.4
  • Grants power to intercept communication by obtaining authorisation from a provincial court judge or a judge of the superior court
  • Before granting his authorisation, the judge must be satisfied that either the originator of the communication or the recipient thereof  has given his/her consent to the interception
  • Under exceptional circumstances, however, a police officer owing to the exigency of the situation may intercept communication without prior authorisation
4. France Loi d'orientation et de programmation pour la performance de la sécurité intérieure (LOPPSI 2), 2011:
  • Authorises use of video surveillance and interception of communications
  • Relevant Provisions: Article 36
Loi de Programmation Militaire (LPM), 2013:
  • Authorises surveillance for protection of national security and prevention of terrorism
  • Interception of communication under LOPPSI 2 requires previous authorization from an investigating Judge after consultation with the Public Prosecutor
  • Such authorization is granted for a period of 4 months which is further extendable by another 4 months
  • Interception of communication under LPM does not require prior sanction from an investigating judge and is instead provided by the Prime Minister’s office
  • Information that can be intercepted under LPM includes not only metadata but also content and geolocation services
5. Germany Gesetz zur Beschränkung des Brief-, Post und Fernmeldegeheimnisses (G10 Act), 2001
  • Imposes restrictions on the right to privacy and authorizes surveillance for protecting freedom and democratic order, preventing terrorism and illegal drug trade
  • Relevant Provisions: §3
The German Code of Criminal Procedure (StPO), 2002
  • Lays down search and seizure protocol and authorizes interception of telecommunications for criminal prosecutions
  • Relevant Provisions: §§ 97, 100a
  • Authorises warrantless surveillance by specific German agencies like the Bundesnachrichtendienst (Federal Intelligence Service)
  • Lays down procedure that must be followed while undertaking surveillance and intercepting communications
  • Authorises sharing of intercepted intelligence for criminal prosecutions
  • Mandates ex post notification to persons whose privacy has been violated but no judicial remedies are available to such persons
  • The Code of Criminal Procedure authorises interception of communication of a person suspected of being involved in a serious offence only on the order of a court upon application by the public prosecution office
6. Pakistan Pakistan Telecommunications Reorganisation Act, 1996:
  • Controls the flow of false and fabricated information and protects national security
  • Relevant Provisions: § 54
Investigation for Fair Trial Act, 2013:
  • Regulates the powers of law enforcement and intelligence agencies regarding covert surveillance and interception of communications
  • Relevant Provisions:  §§ 6,7, 8, 9
  • Authorisation for interception is provided by the federal government. No formal legal structure to monitor surveillance exists
  • Interception can be authorized in the interest of national security and on the apprehension of any offence
  • Requests for filtering and blocking of content are routed through the Inter-Ministerial Committee for the Evaluation of Websites, a confidential regulatory body
  • Under the Fair Trial Act, interception can only be authorised on application to the Fedral Minister for Interior who shall then permit the application to be placed before a High Court Judge
  • The warrant shall be issued by a judge only on his satisfaction that interception will aid in the collection of evidence and that a reasonable threat of the commission of a scheduled offence exists
7. South Africa The Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002
  • Regulates and authorizes monitoring and interception of telecommunications services
  • Relevant Provisions: §§ 16, 22
  • Warrant for intercepting communications and installing surveillance devices is granted by a designated judge
  • The warrant is issued on satisfaction of the judge that the investigation relates to a serious offence or that the information gathering is vital to public health or safety, national security or compelling national economic interests
8. United Kingdom Regulation of Investigatory Powers Act, 2000:
  • Authorises interception of communications and surveillance
  • Relevant Provisions: §§ 5, 6, 65
  • Authorisation for interception is granted in the form of a warrant by the Secretary of State or in certain special cases by a ‘senior officer’
  • Communications can be intercepted only it is necessary to do so in the interest of national security or for the purpose of preventing and detecting serious crimes
  • Complaints of alleged illegal surveillance are heard by the Investigatory Powers Tribunal
9. United States Electronic Communications Privacy Act, 1986 (Title III, Omnibus Crime Control and Safe Streets Act)
  • Governs authorisation for wiretapping and interception
  • Relevant Provisions: §18
  • Authorisation for interception can be granted by a  district court or federal appeals court on application by a law enforcement officer duly signed by the attorney general
  • Application mandates obtaining the information through a service provider before invading upon individual’s privacy