Judicial Oversight of Interception of Communications in the United Kingdom: an Historical and Comparative Analysis

• Publication year: 2016

Judicial Oversight of Interception of Communications in the United Kingdom: An Historical and Comparative Analysis

David G. Barnum^*

Table of Contents

I. Introduction...............................................................................239

II. Constructing an Interception Regime in the United Kingdom: The Anglo-American and European Context ....245

A. The Fourth Amendment and Wiretapping in the United States........................................................................................246

1. Katz v. United States.........................................................246
2. Title III (1968)...................................................................246
3. United States v. U.S. District Court (Keith)......................248
4. Foreign Intelligence Surveillance Act of 1978 .................. 249
5. Conclusion.........................................................................252

B. The European Convention and Wiretapping: Klass v. Germany ...................................................................................253

1. National Security and the Interception Power in Germany ............................................................................253
2. The Road to Strasbourg: Intervening Developments.........255
3. Klass v. Germany...............................................................257
4. Conclusion.........................................................................258

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III. Interception of Communications in the United Kingdom .... 259

A. Initial Developments, 1979-1985.............................................259

1. The Birkett Report (1957)..................................................260
2. Malone v. Commissioner of Police of the Metropolis.......263
3. The Decision in Malone.....................................................264
4. The Aftermath of Malone...................................................267
5. The European Court of Human Rights Decision...............268
6. Interception of Communications Act 1985........................270
7. The Interception of Communications Act and Individual Rights................................................................275

B. The Run-up to RIPA, 1985-2000.............................................276

1. National Security, Telephone Tapping, and the Massiter Revelations.........................................................................277
2. The Security Service Act 1989 and the Intelligence Services Act 1994...............................................................279
3. The Labour Government and Policy Change....................280
4. The RIPA Debate in Parliament........................................281
5. The Regulation of Investigatory Powers Act 2000............283
6. Conclusion.........................................................................284

IV. RIPA 2000 in the European Court: The Kennedy Case.........285

A. The Article 8 Complaint...........................................................286
B. The Article 6 Complaint...........................................................287
C. Conclusion................................................................................290

V. Comparing British and American Surveillance Law.........291

A. Structures, Procedures, and Operational Realities..................291

1. Operational Realities of the Warrant-Granting Process............................................................................... 293
2. Ex Post Scrutiny of Authorized Wiretapping.....................294
3. Conclusion.........................................................................296

B. The Incidence of Wiretapping..................................................297

1. Wiretapping in the United States.......................................297
2. Wiretapping in the United Kingdom..................................298
3. Wiretapping in Other Jurisdictions...................................299

a. Bulgaria.......................................................................299
b. Moldova....................................................................... 300

4. Conclusion.........................................................................301

VI. Conclusion...................................................................................301

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I. Introduction

In the wake of Edward Snowden's revelations about the systematic acquisition by the National Security Agency (NSA) of telephone metadata and internet information—and about cooperation between the NSA and its counterpart in the United Kingdom, the Government Communications Headquarters (GCHQ), in such acquisition—the British Foreign Secretary, William Hague, addressed the House of Commons.¹ As Foreign Secretary, Hague was responsible for issuing warrants to GCHQ for interception of international and wholly foreign communications. In his prepared remarks, Hague said that:

At [the heart of the strong framework of democratic accountability and oversight that governs the use of secret intelligence in the United Kingdom] are two Acts of Parliament: the Intelligence Services Act 1994 and the Regulation of Investigatory Powers Act 2000.² The Acts require GCHQ and other agencies to seek authorisation for their operations from a Secretary of State, normally the Foreign Secretary or Home Secretary. . . . This combination of needing a warrant from one of the most senior members of the Government, decided on the basis of detailed legal advice, and such decisions being reviewed by independent commissioners and implemented by agencies with strong legal and ethical frameworks, with the addition of parliamentary scrutiny by the [Intelligence and Security Committee]³ . . . provides one of the strongest systems of checks and balances and democratic accountability for secret intelligence anywhere in the world.⁴

In the discussion that followed, the Foreign Secretary took questions from members of Parliament. Among the questioners was Labour MP Jack Straw,

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a former Home Secretary (1997-2001), Foreign Secretary (2001-2006), and Secretary of State for Justice (2007-2010). Straw asked Hague whether

the Secretary of State [would] accept that many of our allies, leaving aside the United States, are astonished by the degree of control and supervision of our system of ministerial oversight, oversight by judicially qualified commissioners and oversight by the [Intelligence and Security Committee], which surpasses that of most other western democracies?⁵

Hague responded that "[t]he right honorable Gentleman is absolutely right. . . . [A]s he knows very well, the system of checks and balances and scrutiny that we have is among the strongest in the world; it could be the strongest in the world."⁶

In the United States, Snowden's revelations were followed by, among other things, a series of press releases by the Director of National Intelligence, James Clapper. In a statement released on June 6, 2013, Clapper said that "[t]here is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act, which ensures that those activities comply with the Constitution and laws and appropriately protect privacy and civil liberties."⁷ In a similar vein, in a blog post on June 11, 2013, security expert and former NSA Inspector General Joel Brenner wrote that:

The United States has the most expensive, elaborate, and multi-tiered intelligence oversight apparatus of any nation on Earth. We have well staffed intelligence committees in the House and Senate. The National Security Division of the Justice Department rides herd on the intelligence agencies. The FISA Court gets detailed reports of collection under its orders. The NSA has a robust compliance organization. It also has an inspector general with wide powers operating outside the chain

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of command. None of our European allies controls intelligence activities with comparable rigor.⁸

It is understandable that officials and experts in both Britain and the United States would be anxious to stress the superiority of their respective systems of authorization and oversight of interception of communications. Presumably they cannot all be right, but this does not preclude the possibility that policy makers in both countries have established satisfactory mechanisms for overseeing the surveillance activities of executive branch officials, and have thereby arguably, if approximately, realized the proverbial goal of striking a "proper balance" between liberty and security.

This Article will examine the origin and development of modern arrangements for authorization and oversight of interception of communications within the United Kingdom. It will then venture some comparative conclusions. In particular, it will examine the role of the European Court of Human Rights (ECtHR) in shaping the contours of British surveillance law and in passing judgment on the "Convention-compatibility," pursuant to the court's power to enforce the human rights provisions of the European Convention on Human Rights (ECHR), of the surveillance regime that Britain eventually adopted.⁹ In addition, the Article will compare the surveillance regimes of Britain and the United States with reference to both their statutory underpinnings and available statistical information about their practical operation.

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It is important at the outset to emphasize the limited scope of the ensuing discussion. The phrase "interception of communications" has many meanings. In particular, questions of the legality of government access to the content of communications—the core of the present analysis—bleed inexorably into questions regarding the legal status of non-content "communications data," such as phone numbers and email addresses, and of various categories of "stored communications." In addition, both governments and private-sector organizations are steadily perfecting their ability to engage in "data...