1. This report studies the statutory regulatory regimes of interception of
communications in the United Kingdom (UK), the United States (US) and Australia.
They are examined in 10 aspects: legal framework; authorities responsible for issuing
warrants, application procedures; grounds on which warrants are issued; duration,
termination and renewal of warrants; lawful interception without a warrant; internal
safeguard measures; external safeguard mechanisms by the executive branch, the
judiciary, the legislature and the public; limit of executive discretion in bringing laws
into operation; and legislative amendments in relation to the "911" incident and the
development of communications technology.
2. In the UK, interception of communications is principally regulated by a statute
known as the Regulation of Investigatory Powers Act 2000. Only the heads of law
enforcement or security agencies, or their representatives, are eligible to apply for
interception warrants. These warrants are issued by the Secretary of State.
Warrant applications must meet the tests of necessity and proportionality. The
effective period for all new warrants is the same, but may vary after renewal,
depending on their purposes. Intercepted materials are not admissible as evidence in
legal proceedings, except in limited circumstances. The use of interception powers
is monitored by the Interception of Communications Commissioner whose annual
reports to the Prime Minister are tabled in Parliament and then made available to the
public. The expenditure, administration and policies relating to interceptions for
national security purposes are monitored by a statutory parliamentary committee.
Members of the public can lodge complaints with the Investigatory Powers Tribunal,
which has power to cancel warrants and award compensation. In recent years,
legislative amendments have been introduced to enhance the implementation of the
interception law and combat terrorism.
3. In the US, interception of communications is mainly regulated by three statutes.
Title III of the Omnibus Safe Streets and Crime Control Act 1968 (Title III) regulates
interception of the contents of communications for law enforcement purposes. The
Foreign Intelligence Surveillance Act of 1978 (FISA) regulates interception of the
contents of communications of foreign powers and their agents within the US. The
Pen Registers and Trap and Trace Devices chapter of Title 18 (the Pen/Trap statute)
regulates interception of non-content information of communications. Interception
orders under the three statutes are all issued by Judges. Under Title III and FISA,
court order applications must be authorized or approved by high-level judicial
officials, and the issue of court orders must meet the "probable cause" test. The
Pen/Trap regulatory system is less demanding, under which a court order is issued as
long as the information to be intercepted is relevant to criminal investigation. The
effective period for FISA orders is the longest, and Title III orders the shortest.
Evidence gathered lawfully may be used in legal proceedings. The head of the
Department of Justice is required by all three interception statutes to submit annual
reports to Congress, but the information disclosed is different among them.
Intercepting agencies are accountable to parliamentary committees. After the "911"
incident, significant amendments to the three interception statutes have been made by
the Uniting and Strengthening of America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act to increase the government's interception
4. In Australia, interception of communications is principally regulated by a statute
known as the Telecommunications (Interception) Act 1979. National security
warrants, the application of which must be made by the Director-General of Security,
are issued by the Attorney-General. The reasons for issuing such warrants are not
necessarily related to particular offences. The application for law enforcement
warrants must be made by eligible authorities, and such warrants are issued by Judges
or nominated members of a tribunal for the investigation of specified offences. The
maximum effective period for national security warrants is twice as long as that for
law enforcement warrants. Lawfully intercepted information is admissible as
evidence in exempt proceedings or defined circumstances or for permitted purposes.
The Ombudsman is empowered to inspect the records of law enforcement warrants.
The Attorney-General is required to table annual reports in the Australian Parliament
giving details of telecommunications interceptions for law enforcement purposes.
Law enforcement and security agencies are accountable to two statutory
parliamentary committees. There have been several significant legislative
amendments enacted by the Australian Parliament, most of which are part of the
Australian government's measures against terrorism.
5. The Analysis focuses on comparing the various features of the interception warrant
systems in the three selected jurisdictions. The comparison is made with reference
to the Telecommunication Ordinance, which currently regulates interception of
communications in the Hong Kong Special Administrative Region, the Interception
of Communications Ordinance, which was enacted in June 1997 but has not been
brought into operation by the Government, and the White Bill on interception of
communications, which was published by the Government in February 1997 for
public consultation but has not been introduced into the Legislative Council.