UK: Changes in telephone-tapping warrant procedures disguises true figures

- since 1997 the surveillance of telecommunications has risen more than two and a half times

From July 1998 a major change in the interpretation of the 1985 Interception of Communications Act (IOCA) meant that where previously any change to the initial warrant (eg: a person moved or changed phone numbers), known as a "modification", led to a new warrant being issued - now these changes are recorded seaparately as "modifications".

Three other changes following the introduction of the Regulation of Investigatory Powers Act (RIPA) on 2 October 2000 mean that the increase in surveillance is much greater.

The first change, as noted by the Commissioner in the report for 2001, is that warrants are now issued against named individuals rather than as an order placed on a communications provider. This means that a warrant against an individual can state that all their mail, phone-calls, mobile calls, e-mails and internet usage are to be placed under surveillance. Or put another way round, now one warrant against an individual is used in place of up to five separate warrants (served potentially on five different service providers) previously. Moreover, a single warrant can also cover a whole organisation, for example, a political group or a trade union.

Warrants used to be issued simply to the Post Office (mail) and British Telecom (phone), under Section 2 of the IOCA 1985. But the growth of privatisation and diverse means of communication has changed the demands of the agencies.

Now a single warrant for the surveillance of an individual or premises has to be renewed. Whereas before: "Under IOCA, warrants for intercepts with different CSPs" (communications service providers) had to be renewed separately thus adding to the total number of warrants issued.

Thus a warrant is now issued to the requesting agency (eg: MI5, MI6, GCHQ, NCIS etc) which includes "schedules" that list addresses, numbers, "apparatus or other factors, or combination of factors" (eg: the location of a mobile phone users at a particular point in time). The agencies then place an interception order on any service provider.

There is little doubt that this change should, in theory, result in fewer applications for warrants or put another way, if the overall number of warrants issued stays the same then more people are being placed under surveillance. It is not possible to determine the numercial increase in warrants due to this factor.

The second major change under RIPA 2000, as distinct from the IOCA 1985, is the periods for which warrants are issued.

Under RIPA 2000 warrants can be issued on four grounds (Section 5.3) the fourth of which is new:

(a) in the interest of national security
(b) for the purpose of preventing or detecting serious crime
(c) for the purpose of safeguarding the economic well-being of the UK
(d) to give implement "any international mutual assistance agreement" concerning para.b above (ie: serious crime).

Under the IOCA 1985 warrants covering the then three different purposes were all for two months. Renewals, were for six months for categories (a) and (c) and one month for (b) serious crime, the most numerous category. RIPA 2000 greatly extended these periods. Initial warrants for categories (a) and (c) is now six months with renewals for another six months and for category (b), serious crime, an initial three months with renewals for three months. Put simply, the periods covered by warrants has in effect been doubled. For example, for serious crime an initial warrant plus one extension used to cover three months, now it is six months. For national security (a) and "economic well-being" (b)a warrant used to cover eight months and now it is twelve months.

Again it takes little imagination to see that if, for the administrative convenience of the Home Office and the agencies (ie: a lot less work), the periods have been extended in this way there should either be significantly fewer warrants issued, or if the same or a greater number are issued then the rise in warrants requires explanation and quantification.

Overall, the figure for the number of initial warrants issued in 2003, 1,983 (England, Wales and Scotland), disguises the fact that i) 2,844 previously included "modifications" are excluded; ii) that the periods for warrants in the most numerous category, serious crime, have increased by 50% (initial warrant) and 100% (renewals); iii) where previously between one and five warrants were issued to communications service providers now only one is issued to cover a person or premises (which also has a knock-on effect on the number of renewals).

The effect of these changes are alluded to in the Commissioner's report in 2001. On the Metropolitan Police Special Branch (MPSB) he writes that:

"Statistically, MPSB warrants are now held for longer than in the past - typically over a period of several months rather than days"

The example given by the National Criminal Intelligence Service (NCIS) to the Commissioner shows that in the last year of the IOCA 1985 they had "just over 600 warranted target addresses" (individuals and premises). Whereas as in the first year of RIPA 2000 they had 800 target addresses "deriving from only just over 400 warrants". While the number of warrants dropped by a third (from 600 to 400) the number of target addresses rose by a third (from 600 to 800).

Taken alone the overall rise in warrants issued (including "modifications") shows that since 1997 the surveillance of telecommunications has risen more than two and a half times. The additional, unqauntified, issuing of single warrants to agencies where previously between one and five may have been issued to CSPs and the extended periods of the warrants means that this is a gross under-estimate of the growth in surveillance since the Labour government came to power.

Tony Bunyan

Sources: See Statewatch, vol 7 nos 1 & 4 & 5; vol 8 nos 5 & 6; vol 10 no 6; vol 11 nos 1 & 2; vol 12 nos 1 & 3/4; vol 13 no 5.

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