14 December 1998. Thanks to APB.
Date: Sun, 13 Dec 1998 14:06:36 +0200 (SAST) From: apb To: cryptography@c2.net Subject: Proposed wiretap laws in South Africa The South African Law Commission (a body that makes suggestions to the central goverment about changes in legislation) has released a discussion paper on interception and monitoring of electronic communications. Parts of the proposed legislation are reminiscent of the worst parts of the US FBI-sponsored Digital Telephony legistation a few years ago: * Notwithstanding the provisions of any other law, no person ... may provide [any telecommunications service] which is not capable and does not have the capacity to be monitored * any person ... rendering a telecommunications service shall at own cost ... acquire ... facilities ... to enable the monitoring of conversations and communications ... * the investment ... and operating costs in enabling a telecommunications service to be capable of being mionitored, shall be carried by the person ... rendering such a service * duplicate signals ... shall be routed by the relevant person ... to the central monitoring centre, to be designated by ... [the police], [the military], [the National Intelligence Agency], [the South African Secret Service]. Whether Internet service providers are "telecommunication service providers" in terms of relevant legislation is not entirely clear. See the South African Law Commission web page at <URL:http://www.law.wits.ac.za/salc/salc.html>, and follow the links to * Project 105 Review of Security Legislation Discussion Paper 78 The Interception and Monitoring Prohibition Act 127 of 1992 (November 1998) or go directly to <URL:http://www.law.wits.ac.za/salc/discussn/monitoring.pdf> for the paper in PDF format. --apb
SOUTH AFRICAN LAW COMMISSION
DISCUSSION PAPER 78
PROJECT 105
REVIEW OF SECURITY LEGISLATION
THE INTERCEPTION AND MONITORING PROHIBITION ACT
(ACT No. 127 OF 1992)
November 1998
Closing date for comment: 25 January 1999
ISBN: 0-621-28847-0
The South African Law Commission was established by the South African Law Commission Act, 1973 (Act 19 of 1973).
The members of the Commission are -
The Honourable Mr Justice I Mahomed (Chairman)
The Honourable Mr Justice P J J Olivier (Vice-Chairman)
The Honourable Madam Justice Y Mokgoro
Prof R T Nhlapo
Adv J J Gauntlett SC
Ms Z Seedat
Mr P Mojapelo
The Secretary is Mr W Henegan. The Commission's offices are on the 12th floor, Corner Schoeman and Andries Streets, Sanlam Centre, Pretoria. Correspondence should be addressed to:
The Secretary
South African Law Commission
Private Bag X668
PRETORIA
0001Telephone: (012) 322-6440
Fax: (012) 320-0936
E-mail: pvwyk@salawcom.org.za
Internet site: http://www.law.wits.ac.za/salc/salc.html
The project leader responsible for the project is the Honourable Mr Justice CT Howie.
This Discussion Paper (which reflects information gathered up to the end of June 1998) was prepared to elicit responses and to serve as a basis for the Commission’s deliberations, taking into account any responses received. The views, conclusions and recommendations in this paper are accordingly not to be regarded as the Commission’s final views. The Discussion Paper is published in full so as to provide persons and bodies wishing to comment or to make suggestions for the reform of this particular branch of the law with sufficient background information to enable them to place focussed submissions before the Commission.
The Commission will assume that respondents agree to the Commission quoting from or referring to comments and attributing comments to respondents, unless representations are marked confidential. Respondents should be aware that the Commission may in any event be required to release information contained in representations under the Constitution of the Republic of South Africa, Act 108 of 1996.
Respondents are requested to submit written comments, representations or requests to the Commission by 25 January 1999 at the address appearing on the previous page. The researcher will endeavour to assist you with particular difficulties you may have. Comment already forwarded to the Commission should not be repeated; in such event respondents should merely indicate that they abide by their previous comment, if this is the position.
The researcher allocated to this project, who may be contacted for further information, is Mr PA van Wyk. The project leader responsible for the project is Mr Justice CT Howie.
IntroductionPreface
Summary of recommendations and specific requests for comment
A. The origin of the investigationB. Background
Chapter 2 The legal position in South Africa
Chapter 3 The legal position in France
Chapter 4 The legal position in the Netherlands
Chapter 5 The legal position in Belgium
Chapter 6 The legal position in Germany
Chapter 7 The legal position in Britain
Chapter 8 The Legal position in the United States of America
Chapter 9 The legal position in Hong Kong
A. BackgroundB. The need for requiring authorisation for surveillance and interception by warrant
C. Who should issue warrants?
D. Private sector intrusions
E. Criteria for interception
F. Duration of warrants
G. Safeguards regarding retention of surveillance materials
H. Admissibility of surveillance materials
I. Notification following termination of surveillance
J. The regulation of surveillance
K. Reports
L. Remedies
M. Supervisory tribunal
N. Licensing of surveillance equipment
Chapter 10 The legal position in Canada
A. IntroductionB. Offences in respect of which applications for interception may be made
C. Private communications and interception
D. Consent to intercept
E. The general rule prohibiting interception
F. Interception to prevent bodily harm
G. Interception with consent and applications for authorization
H. Applications by means of telecommunication
I. Interception in exceptional circumstances without authorization
J. Applications for authorizationK. Manner in which application to be kept secret
L. Applications to specially appointed judges in emergency
M. Executions of authorizations
N. Notice of intention to produce evidence
O. Privilege
P. Further particulars
Q. Possession, sale or purchase of any electro-magnetic, acoustic, mechanical or other device or any component etc.
R. Disclosure of information
S. Damages
T. Annual report
U. Written notification to be given
Chapter 11 Comments and recommendations
Annexure “A”: The Interception and Monitoring Prohibition Amendment Bill, 1998
The Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992), is reviewed, with reference to, and in comparison with, the legal position in France, the Netherlands, Belgium, Germany, Britain and the United States of America.
In general, the Interception and Monitoring Prohibition Act, 1992, compares favourably with the legislation of the said countries.
The project committee makes the following general recommendations in this Discussion Paper, namely-
The project committee makes the following specific recommendations in regard to amending the Interception and Monitoring Prohibition Act, 1992, namely-
1. to insert a definition on call related information in order to define what call related information is, (however, the project committee poses the question whether its proposed definition is technically correct and considers that more attention should be given to the proposed definition and would appreciate receiving information particularly on this aspect);
2. to define further what a judge means in the context of the Act ie by substituting the term High Court for the term Supreme Court and to delete the reference to a particular division in regard to a retired judge who is designated by the Minister to perform the functions of a judge;3. to make further provision in the definition of serious offence for offences to fall within the ambit of the Act ie to include other interests of the Republic (in addition to offences which may allegedly harm the economy and which are presently included as serious offences); any offence referred to in sections 13 (f) and 14 (b) of the Drugs and Drug Trafficking Act, 1992; any offence relating to the trafficking in firearms, ammunition and explosives; any offence relating to the death or serious bodily harm of any person; and any offence relating to organized crime, money-laundering or the proceeds of crime. (The project committee notes that the definition of serious offence contains a proviso setting out that the offence concerned is being or has been committed over a lengthy period of time. The committee considered the question whether it is necessary to qualify the period over which an offence is planned or committed. One thought is that the lengthy period of time referred to in the definition sets the proviso in the scenario where the applicant must convince the judge of an ongoing offence to be monitored for a period of say 60 days. The committee also noted that the fact of the offence being linked to a lengthy period may present difficulties once the applicant has to satisfy the judge that the offence cannot be properly investigated in another less intrusive manner. The committee does not, however, have definite views on the proviso regarding the requirement of the offence being committed over a lengthy period of time. The committee would appreciate receiving particular comment on this aspect.);
4. to insert into the definitions a definition on telecommunication service setting out that it means any telecommunication service as defined in the Telecommunications Act, 1996 (Act No. 103 of 1996), in respect of -
(a) a public switched telecommunication service;(b) a mobile or a fixed cellular telecommunication service;
(c) a national long distance telecommunication service;
(d) an international telecommunication service; or
(e) any other telecommunication service licensed as such in terms of the Telecommunications Act, 1996.
(The project committee also invites particular comment on the technical correctness of this proposed definition, since the question arises whether, for example, e-mail communication and video communications are included in its proposed definition.);
5. to make it further clear that the general position regarding interception or monitoring is that the interception or monitoring without the knowledge or permission of the parties to a conversation or communication so as to gather confidential information concerning any person body or organisation, is prohibited;6. adding the interests of the Republic as another criterion to be taken into account by the judge when determining whether a direction should be issued to the existing criterion of the security of the Republic being threatened. (The project committee is of the view that its proposed term “interests” may lead to abuse if an application is brought on much narrower grounds than for example economic interests, and that more attention should therefore be given to the term “interests”. The project committee therefore also requests specific comment on this issue.);
7. to provide that a direction may be issued by a judge designated by the Minister in each division to consider only applications in terms of the Act relating to serious offences; Provided that the Minister may designate a judge for more than one division; (Presently a direction may only be considered by the judge designated for the division from where the postal article or communication has been or will probably be dispatched or transmitted or where that postal article or communication will probably be received. However, presently only one judge has been designated for all the divisions who has to deal with all applications and no distinction is made between serious crime and security matters. Suggestions have in the past been made in Parliament to establish a panel of judges who should consider applications for interception and monitoring. In most of the European countries, there is a dual system in respect of security related/national interest investigations respectively and normal criminal investigations. It is suggested that a dual system also be created in the Interception and Monitoring Act in terms of which the National Intelligence Agency (NIA), the South African Secret Service (SASS) and the South African National Defence Force (SANDF) apply to a single judge at a central point for directions in regard to security and national interest matters, and that the South African Police Services (SAPS) also apply to the same judge for matters regarding national security. A further judge in each provincial and local division of the High Court could then be designated to consider applications for interception and monitoring in respect of the ordinary criminal investigations. However, a proviso is suggested empowering the Minister of Justice to designate a judge for more than one division dealing with the serious crime applications. The project committee favours the appointment of a panel of judges.);
8. to substitute the term “convinced” in section 3(1)(b) of the Act with the term “satisfied”. (The Act provides that a judge may issue a directive if the judge concerned is convinced that the offence that has been or is being committed or will probably be committed, is a serious offence that cannot be properly investigated in any other manner or that the security of the Republic is being threatened or that the gathering of information concerning a threat to the security of the Republic is necessary. The project committee considers that the required standard should be that of the judge being “satisfied” and not being “convinced”. The project committee is of the view that the standard of being “satisfied” will be interpreted as meaning being satisfied on a balance of probabilities.);9. to substitute the words “any other manner” with “another less intrusive manner” thereby making it clear that the offence concerned cannot be properly investigated in another less intrusive manner;
10. to provide in clause 3(7) that no communication between a legal representative and his or her client may be intercepted or monitored, except if on reliable information, the judge is satisfied that such a legal representative is involved in, or aiding or abetting a serious offence;
11. to provide in section 5(4) that the remuneration referred to in subsections (2) and (3) shall only be in respect of direct costs incurred in respect of personnel and administration and the lease of telecommunications lines, where applicable, and shall not include the costs of acquiring the facilities and devices referred to section 5A(2). (The project committee is however of the view that there is a need to give more attention to its proposed term “direct costs”with a view to establish whether “direct costs” is the appropriate term, and also to establish what is exactly involved in “direct costs” and, furthermore, it would like to ascertain what the amounts concerned are. The Act presently provides that if a person, body or organization has made a facility, device or telecommunications line available, for the purposes of the Act, the remuneration agreed upon by the person or organisation andthe Commissioner of the South African Police Services, the Chief of the South African Defence Force or the Director-general of the Agency or Service, as the case may be, shall be paid to that person, body or organisation for assisting to execute a direction. If no agreement can be reached, a reasonable remuneration must be determined by the Minister for Posts, Telecommunications and Broadcasting with the concurrence of the Minister for State Expenditure in order to compensate the person, body or organisation at least for any costs incurred as a result of any action taken in terms of the Act.);
12. to provide that no person, body or organization rendering a telecommunication service, may provide any such service which is not capable of being monitored;
13. to provide that any person, body or organization rendering a telecommunication service shall at own cost and within the period specified in a directive by the Minister responsible for Communications, acquire the necessary facilities and devices to enable the monitoring of conversations and communications, where the monitoring has been authorized in terms of this Act, from a supplier approved by the Minister responsible for Communications;
14. to provide that the investment, technical, maintenance and operating costs in making a telecommunication service capable of being monitored, shall be carried by the person, body or organization rendering such a service;
15. to provide that duplicate signals of conversations and communications authorized to be monitored in terms of this Act, shall be routed by the relevant person, body or organization rendering a telecommunication service to the relevant central monitoring centre, to be designated by, respectively, the National Commissioner of the South African Police Service, the Chief of the South African National Defence Force, and the Directors-General of the Agency and Service;
16. to provide that the South African Police Service, the South African National Defence Force, the Agency and the Service shall, at State expense, equip and maintain central monitoring centres for the authorized monitoring of conversations or communications: Provided that an agreement on the sharing of any such central monitoring centre shall not be excluded;
17. to provide in section 5A(6) that the Minister responsible for Communications may issue a directive to any person, body or organization rendering a telecommunication service, to comply with the provision on the rendering of services which are capable of being monitored and that he or she may specify the security, technical and functional requirements of the facilities and devices to be acquired in terms of subsection (2);
18. to provide that any person who is authorized to apply for a monitoring or an interception direction for the provisioning on an ongoing basis of call related data relating to the conversations or communications mentioned in the direction, and the judge may authorize such provisioning in the same direction;19. to provide that any person, body or organization rendering a telecommunication service shall, in respect of all conversations or communications which are monitored in terms of this Act, route the call related data specified in a direction to the relevant designated central monitoring centre;
20. to provide that, if only call related data is required on an ongoing basis without the actual monitoring of the conversation or communication in question, the judge may direct that the relevant person, body or organization rendering a telecommunication service to whom or which a direction is addressed, provide such call related data for purposes relating to the functions of the South African Police Service, the South African National Defence Force, the Agency or the Service;
21. to provide that the procedures set out in the Bill in respect of the ongoing provisioning of call related data does not exclude the use of any other power in any other Act, to obtain evidence or information in respect of a person, body or organization;
22. to provide that any person, body or organization rendering a telecommunication service, shall provide such information regarding users of such telecommunication service to the South African Police Service, the South African National Defence Force, the Agency or the Service, as may be required by an officer or member referred to in sections 3(2)(a), (b) and (c) of the Act to fulfil the functions and exercise the powers authorized by law, including the provision of the name, identity number and address of the person using a specific telecommunication number;
23. to provide that any person, body or organization rendering a telecommunication service shall ensure that proper records regarding identities and addresses are kept in respect of clients to whom a telecommunication service is provided, whether on a prepaid or contract basis and shall require positive identification from a client to whom such a service is provided. (The project committee considers the term “positive identification” as a warning to persons, bodies or organizations rendering telecommunications services to be careful in their dealings with people particularly when confirming identification.);
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24. to provide that a judge considering an application may dispense with the procedure set out in the Act in any case considered by him or her to be sufficiently urgent, and therefore he or she may deal with the matter in such manner and subject to such conditions as he or she may deem fit, including the grant in any appropriate case of an oral direction followed up by written application within one week. (This provision is introduced to deal with urgent or emergency applications. In Germany, the United States and some other countries the Attorney-General has such a power to grant authorization for interception and monitoring for a limited time, for example 24 hours. However, the Act does not presently make provision for the grant of directions in urgent circumstances enabling the judge considering the application to deviate from the procedure as set out in the Act.) The project committee is of the view that further attention should be given to the question whether the circumstances should be set out in the Bill in regard to urgent applications, for example along the lines of the United States and Canadian legislation;25. to set out that the use of any information obtained through the application of the Act, or any similar Act in another country, as evidence in any prosecution, is subject to any guide-lines of the Director of Public Prosecutions or Investigating Director concerned which may include an obligation to obtain the relevant Director’s permission to use the said information as evidence, if so required by the Director of Public Prosecutions or Investigating Director. (Hence, the Act seeks to provide that evidence obtained from monitoring may only be used in a criminal trial with the authorization of the Director of Public Prosecutions or Investigating Director or person designated by him or her. The project committee considers that it is possible that there may be a number of cases being investigated in regard to a person being the subject of a monitoring and other cases might very well be put at risk if information or evidence uncovered by monitoring were to be disclosed if a Director of Public Prosecutions were not involved in the decision to use the information as evidence.);
26. setting out that the information regarding the commission of any criminal offence, obtained by means of any interception or monitoring in terms of the Act, or any similar Act in another country may be admissible as evidence in criminal proceedings. (The project committee is of the view that the question whether evidence should be admissible should be left to the trial court. The project committee further noted the issue question whether evidence should be admissible in criminal proceedings irrespective of the grounds on which the direction has been granted, ie whether evidence obtained through monitoring should be admissible in respect of any criminal charge, irrespective of the grounds on which or the offence in respect of which the authorization was obtained. The project committee notes that section 35(5) of the Constitution which provides that evidence obtained in a manner that violates any right in the Bill must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. The committee notes further that a pertinent question is whether it would be thought unconstitutional to allow evidence obtained as a result of a lawful direction which was authorised in respect of an offence other than the offence uncovered by the monitoring. The project committee is of the view that the application of this clause should be confined to serious offences only. The project committee considers that there are two options in regard of the proposed clause: The first option would be to retain the wording of the proposed clause which means that all evidence uncovered by a monitoring may be presented and the court then has to decide whether the evidence is admissible. The second option is to delete the words “irrespective of the grounds on which the direction has been granted”.)
27. to provide that any person, body or organization rendering a telecommunication service and who or which fails or refuses to comply with -(a) a direction issued by a judge;(b) a directive issued by the Minister for Posts, Telecommunications and Broadcasting;
(c) the obligation to provide information regarding a user of a telecommunication service; or
(d) the obligation to keep records; or
(e) the obligation to require positive identification when contracting a telecommunication service;
shall be guilty of an offence, and liable on conviction, to a fine.
(The project committee notes that section 8(1) of the Act does not prescribe a maximum fine which may be imposed if a party contravenes the provision. The project committee is of the view that further attention should be given to this aspect and that a substantial amount should be set in regard to the proposed clause 8A(1) of the Bill and section 8(1) of the Act. The Committee is of the view that R 200 000-00 is an appropriate maximum
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amount to be considered in respect of the proposed clause 8(1A) of the Bill in view of the seriousness of the issues concerned. The project committee noted that the Australian Federal Telecommunications (Interception) Act provides that the penalty for authorizing, suffering or permitting another person to intercept or to do anything that will enable a person to intercept a communication is $ 5 000-00 or imprisonment for 2 years. The project committee therefore considers that the maximum fine in regard to section 8(1)(a) should be R 20 000-00 and in regard to section 8(1)(b) an amount of R 40 000-00.);28. to provide that if any person, body or organization who or which renders a telecommunication service, after a conviction for failing to comply with a directive, fails to comply with a further directive issued by the Minister for Posts, Telecommunications and Broadcasting to comply, the Minister may revoke the licence issued in terms of Chapter V of the Telecommunications Act, 1996, to such person, body or organization to render a telecommunication service.
10.7 The project committee further requests particular comment on the following issues:
Halford v United Kingdom (1997) 3B HRC 3 (European Court for Human Rights).
Protea Technology Ltd and Another v Wainer and Others (1997) 3 All SA 594.
S v Naidoo and Another (1998) 1 All SA 189.
S v Nkabinde and Another Case No. CC124/97 Pietermaritzburg High Court.
Malone case European Court of Human Rights (4/1983/60/94) Strasbourg 2 August 1984.
Klass and Others: Judgment of the European Court for Human Rights: Strasbourg 6 September 1978.
Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992) (South Africa)
Interpretation Act, 1957 (Act No. 33 of 1957) (South Africa)
Criminal Procedure Act, 1977 (Act No. 57 of 1977) (South Africa)
Loi no 9 - 646 du 10 Juillet 1991 relative an secret des correspondances émises por la vioce des telecommunications (France)
Telecommunications Bill, 1998 (Netherlands)
Wet van 30 Junie 1994 - ter bescherming van de persoonlijke levensfeer tegen het afluisteren, kennisnemen en openen van privécommunicatie en telecommunicatie (Belgium)
Interception of Telecommunications Act, 1985 (Britain)
Foreign Intelligence Surveillance Act (FISA) (United States of America)
Omnibus Crime Control and Safe Streets Act (18 USC Title III) United States of America
Communications Assistance for Law Enforcement Act (CALEA) Public Law 103 - 414; 47 USC 1001 - 1010. (United States of America)
Criminal Code Part VI Canada ( Invasion of privacy)
Electronic Communications Privacy Act 1986 (United States of America)
Beeld 1998-04-23 “Nkabinde - regter verstom oor afluistering”.
Burke “Secret Surveillance and the European Convention on Human Rights” 1981 Stanford Law Review, p 1113 - 1140.
Chappell Dr Duncan “Law Enforcement Co-operation: The Interception of Communications and the Right to Privacy” Paper presented at the Oxford Conference on International Co-operation in Criminal Matters: Balancing the protection of human rights with the needs of law enforcement 24 - 28 August 1998, Christ Church, Oxford, UK.
Carr James G The Law of Electronic Surveillance Clark Boardman Company: Ltd New York 1986.
Carr James G “Wiretapping in West Germany” 1981 American Journal for Comparative Law p 607 - 645.
Commission of Enquiry Concerning certain Activities of the Royal Canadian Mounted Police second report Freedom and Security under the Law August 1981.
Commission Nationale de Contrôle des Interceptions de Securité Report for 1997 La Documentation Francaise, Paris 1998.
Clark M Wesley “Electronic Surveillance and Related Investigative Techniques” 1990 Military Law Review Vol 128 p 155.
Cramer Vicky “Cellular phones: Walking the tightrope between technology and security” 4 April 1998 Security Focus Vol 11 p 6.
Cramer Vicky &Van den Hout, PJ Het afluisteren van telefoongesprekke als dwangmiddel. Gouda Quist/Noordwijl: Kluwer 1989.
Crawford Kimberley A “Surreptitious Recording of Suspect’s Conversations” September 1993 FBI Law Enforcement Bulletin p 26.
Editorial “Hou die Regbank ongeskonde” October 1992 Consultus.
Denning Dorothy E Denning “To tap” Georgetown University Comm of the ACM March 1993 Vol 36 No 3 p 24.
European Union Internationale Anforderungen für die rechtmässige Überwachung des Telekommunikationsverkehrs January 1995.
Fishman Clifford S “Interception of communications in exigient circumstances: the Fourth Amendment, Federal Legislation, and the United States Department of Justice” Fall 1987 Georgia Law Review Vol 22 No 1 p 1.
Fishman, Clifford S Wiretapping and Eavesdropping New York: The Lawyers Co-operative Publishing Co. 1978.
Fijnaut Cyrille Marx Gary T Undercover Police Surveillance in Comparative Perspective Boston: Kluwer Law and Taxation Publishers 1995
Federal Bureau for Investigation Federal Register Oct 16 1995 (vol 60) No 199 Notices. Page 53643-53646 from Federal Register Online via GPO access. Initial notice and request for comments. CALEA.
General Secretariat: International Telecommunications Union. International Telecommunication Convention, Final Protocol. Additional Protocols, Optional Additional Protocol,Recommendations and Opinions Nairobi, 1982.
Global Crime Update No 18 - May 29 1998.
Goldstein “The Eavesdropping Law” 1980 Israel Law Review vol 15 p 144-153.
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Lensing JAW Criminal Law The Hague: Kluwer Law International 1997.
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Marshall Harold “Fax machine cannot be bugged like a telephone” March 1992 Security Focus p 77.
Mathews Anthony S Freedom, State Security and The Rule of Law Kenwyn: Juta and Co Ltd 1986.
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1.1 In November 1995 the Commission considered a request from the Minister for Safety and Security that a review and rationalisation of South Africa’s security legislation should be undertaken by the Commission.1 The Minister for Safety and Security suggested that in view of the history of security legislation and changed circumstances in South Africa, all existing legislation such as the Internal Security Act, 1982, should be enacted in accordance with international norms, the Constitution and the country’s present circumstances and requirements.
1.2 The then Chairperson of the Commission, Mr Justice H J P van Heerden, informed the Minister that the Commission was willing to undertake a review of security legislation and he requested logistical support from the Department of Safety and Security or the Department of Justice. The Chairperson also suggested the establishment of a project committee of experts to advise the Commission and to consider the papers drafted during the course of the investigation.
1.3 At its meeting on 23 and 24 February 1996, the reconstituted Commission endorsed both the views expressed by its predecessors in this regard and the establishment of a project committee composed of suitably qualified experts. The Minister of Justice was subsequently requested to approve the inclusion of the investigation in the Commission’s programme. On 22 March 1996 he approved the inclusion of the investigation on the Commission’s programme. The Commission designated Madam Justice Mokgoro, being one of its Commissioners, to serve on the project committee. On 1 October 1998 the Minister of Justice appointed the following persons to serve on the project committee on security legislation:
1.4 In the meantime, Parliament has adopted the Safety Matters Rationalization Act, 1996 (Act No. 90 of 1996), which repealed a number of South African Acts dealing with security legislation, including those of the former TBVC states, which was clearly inconsonant with the interim Constitution.2 A total number of 34 laws were repealed in the process, whilst the operation of the following Acts of the Republic of South Africa was extended to the whole national territory of the Republic :
* The Riotous Assemblies Act, 1956 (Act No. 17 of 1956);* The Explosives Act, 1956 (Act No. 26 of 1956);
* The Intimidation Act, 1982 (Act No. 72 of 1982);
* The Internal Security Act, 1982 (Act No. 74 of 1982) (as amended by section 1 of the Safety Matters Rationalization Act, 1996);
* The Demonstrations in or near Court Buildings Prohibition Act, 1982 (Act No. 71 of 1982);
* The Regulation of Gatherings Act, 1993 (Act No. 205 of 1993).
1.5 The only provisions of the Internal Security Act, 1982, which remained in force are sections 54(1) and (2), and section 46(3), ie the offences of terrorism and sabotage and the power of the Minister for Safety and Security to prohibit gatherings in certain circumstances. 1.6 The Regulation of Gatherings Act, 1993, which repealed the Demonstrations in or near Court Buildings Prohibition Act, 1982, has been put into operation.
1.7 In this investigation the Law Commission will concentrate on matters such as :
* The review of the crimes of terrorism and sabotage - in order that South Africa can ensure that obligations in respect of international terrorism are fulfilled.
* The protection of classified information in the possession of the State.* Interception and monitoring - the review of the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992).
* Regulation of Private Intelligence Companies.
* Economic espionage as a threat to national security.
* Protection of the property and personnel of foreign governments and international organisations, including protection from intimidation, obstruction, coercion and acts of violence committed against foreign dignitaries, foreign officials and their family members.
* Hostage taking in order to compel any government to do or abstain from doing any act.
1.8 The Project Committee has decided to prioritize this investigation. It has been decided that the area which needs priority attention, is that of interception and monitoring of communications for crime investigation and intelligence gathering. The Project Committee will continue to prepare discussion papers on the other topics as its investigation progresses.
1.9 The Interception and Monitoring Prohibition Act, 1992, was put into operation on 1 February 1993. It was drafted before the adoption of the Interim Constitution, but at a time when the debate on a new constitutional dispensation and a Bill of Rights had already started. The Act was drafted without the framework of a democratic constitution, but with the knowledge that the Act will have to withstand the challenges of a constitutional state comparable to strict standards. At the time of drafting the Interception and Monitoring Prohibition Act, 1992, the South African Law Commission had already published a draft Bill of Rights for comments. Until recently, there was no provision in the territories of the previous TBVC states regarding interception and monitoring. The Interception and Monitoring Prohibition Act, 1992, was only made applicable to the whole territory of the Republic on 1 April 1997, when the Justice Laws Rationalization Act, 1996 (Act No. 18 of 1996), was put into operation. In drafting the Act, cognizance was taken of the legal position in Europe, Canada, the United States of America, Canada, standards of the European Court for Human Rights and specifically jurisprudence of the Court regarding interception and monitoring.
1.10. The fact remains, however, that in the meantime there was an interim Constitution, operative for a number of years and a final Constitution has been adopted. Furthermore, there have been considerable technological advances in respect of telecommunications - cellular communications, satellite communications, and computer communications through E-mail, and the electronic transfer of information and data.
1.11 There have also been considerable legal developments across the world regarding interception of communications - developments influenced by technology as well as financial considerations. The Irish Law Commission recently noted that the technological breakthroughs made in regard to surveillance have been spectacular:3
“1.19 ... It is surprising if not shocking to learn of the ease with which this technology can pry open personal space which may previously have been considered safe. Specific examples of listening and optical surveillance devices which are generally available were listed by the Australian Law Commission as long ago as 1983. The gravity of surveillance as a threat to personal privacy in today’s world can be understood from considering the following list:- parabolic microphones with ranges extending to more than 250 metres,- miniature tape-recorders which can be concealed inside, for example, cigarette packets,
- binoculars having built-in cartridges,
- listening devices laminated onto business cards,
- brief-case cameras, activated by pressing a button on the briefcase,
- residual light image intensifiers with ranges of up to 10 kilometres for long range observation at night,
- day-and-night cameras connected to monitors and operated by remote control,
- long-range photographic flash devices enabling photographs to be taken at night without detection and from a range of 100 metres or more,
- microphones concealed in watches, buttonholes, pens and ties,
- sub-miniature transmitters, smaller than sugar cubes, which can record conversations from a distance of 10 metres and transmit them at high quality up to 150 metres,
- listening devices which through the use of laser beams can monitor and record conversations from positions outside the room in which they are occurring,
- electronic stethoscopes which, by picking up mechanical vibrations and amplifying them up to 10,000-fold, enable conversations to be monitored through windows, doors and walls,- optical devices which permit continuous monitoring in complete darkness, and
- listening devices placed in telephones, which enable surveillance of conversations within a room even when the telephone is not in use.
1.20 Indeed, the range and sophistication of technological devices which can be used for surveillance purposes have increased substantially since the Australian Law Reform Commission studied the topic of privacy, and technological innovation continues at an amazing rate. We pointed this out in our Consultation Paper and gave the following examples of recently developed surveillance devices:
- small video cameras which can be held in the palm of one’s hand, and- an artificial “eye” which, by a combination of optical computing and neutral networking, can “learn” to recognise objects in a way which mimics human sight.
1.21 More recently, surveillance technology is reportedly being developed using systems that can operate outside the visible light spectrum, such as:
- Forward-Looking Infra-Red systems which are able to detect human activity behind walls and- Computerised Face Recognition technology which will enable the matching of an image on the street and a file on a database.
1.22 The next development in the technology will reportedly involve the development of an interactive link between surveillance technology and computerised data banks (CCTV surveillance networks). This will potentially allow for automatic tracking of the movements of individuals. Technology is already available to broadcast the footage generated by CCTV systems over the internet.
1.23 An enormous range of devices with extraordinary potential for intrusiveness (including for example a video camera in the form of a shower head) is now available cheaply by mail order over the internet, and there is a corresponding market in anti-surveillance devices similarly available. We allude in this report to copious accounts in the newspapers that sophisticated surveillance technology is being used in Ireland.”
1.12 The Hong Kong Law Reform Commission recently considered the regulation of surveillance and interception of communications and examined, inter alia, the impact of new technologies on the ability to tap into telecommunications systems, and the competing ability to encrypt messages.4 The Commission noted in regard to tappability that some new technologies such as optical fibres are making it harder to tap into telecommunications systems. They further stated that even where the communication is intercepted, modern technical developments in cryptography may preclude it from being deciphered. The Hong Kong Commission pointed out that the purpose of cryptography is the encrypting of information and that there is now easy availability of encryption sufficiently strong that an encrypted message would take the world’s most powerful supercomputer years to crack. The Commission explained encryption as an accessible tool as follows:
9.32 Encryption software can be generated in less than 5 minutes with such simple equipment as PGP ("Pretty Good Privacy") software for e-mail and PGP Fone software for speech over a network using 2 Power Macintosh computers. PGP is the most popular system, being freely available to United States citizens in the United States and freely outside the United States, where it is not subject to patents. It is believed that the system is strong enough to resist challenge from most quarters, although it is impossible to prove how strong the system is, only how weak.9.33 A vital feature of modern cryptography is that of the public keys. A lock-and-key approach is adopted to telecommunications security. The lock is a "public key", which a user can transmit to recipients. To unlock the message, the recipient uses a personal encryption code or "private key". The development of public key cryptography in the mid-1970s eliminated the need for network subscribers to provide trusted elements with the capability of decrypting any message. Public key encryption dramatically increases the availability of encryption/identification as the dual key system allows the encryption key to be made available to potential communicants while keeping the decryption key secret. This would allow, for example, a bank to make its public key available to many people, without those people being able to read each others' encrypted messages. Two relevant limitations, however, are:
(i) keys infrequently changed have an increased risk of being broken as, in principle, any public key system can be broken given sufficient computer power and time.(ii) it is critical to ensure that the user has the correct public key. If provided by an intermediary, he could interpose a key of his own. Hence trust is a critical issue.
9.34 Another important feature of encryption is key signatures. These verify the identity of the person sending the message. They can be wiped after sending the message, so rendering it anonymous.
9.35 A system popular in the Hong Kong telephone market is that of Global System for Mobile communications (GSM) phones. The digital GSM technology employs a 54 bit encryption code: a single call would take a Cray supercomputer two hours to decipher.
1.13 Dr Duncan Chappell recently pointed out the effect of new technologies such as the launch of a new satellite telephone company Iridium would pose in regard to surveillance and interception.5 He explained that the Iridium system is based on a constellation of 66 low earth orbit satellites which operate like a global cellular system, passing signals between them in a cell like formation so that a user can be reached anywhere in the world. Dr Chappell noted that this new development poses formidable challenges to those concerned in the investigation of crime, especially crime which transcends national boundaries:
It must be presumed that not all of the targeted international business customers for these new satellite based personal communication systems will be law abiding citizens. These systems have obvious benefits for the conduct of both legitimate business enterprises, and a wealth of contemporary data and experience shows that criminals are enthusiastic consumers of new technologies like this which provide their nefarious activities with a fresh competitive edge.One competitive edge that a system like Iridium promises to give criminals is an ability to conduct their communications in an interception free environment. ... It is sufficient to highlight just one of the significant barriers which will confront the law enforcement community in gaining legal authority to intercept communications by persons subscribing to Iridium’s services. Take, for example, an Australian subscriber who is believed, on reasonable grounds, to be involved in the importation from south East Asia of significant quantities of heroin. If an interception warrant were to be sought by an authorised law enforcement agency in Australia in regard to that subscriber, any execution of that warrant would have to involve the consent and agreement of a foreign government since the Iridium earth station gateway for Australia is located in India. Current mutual assistance arrangements between Australia and India do not extend to the interception of communications. While this situation is believed to be the subject of ongoing dialogue between governmental officials from the two countries it will almost certainly take some time to resolve the delicate legal and political issues involved.
Quite apart from this not insignificant barrier in Australia to the lawful interception of Iridium linked communications, and it must be presumed in many other countries which similarly lack an Iridium gateway on their own soil, there are also unresolved technological barriers to such interception ... remedies are being sought for these technological problems but in combination they provide a graphic illustration of the way in which the general revolution in communications is proceeding at such a pace that law enforcement interests and concerns are at best scrambling to remain in contention. As the authors of a recent study of “crime in the digital age” have remarked:
... [T]he advent of digital communications, combined with global trends towards privatisation and deregulation of the telecommunications industry, have posed new challenges for law enforcement. A proliferation of carriers and service providers may make it difficult to discern which one to approach for assistance in undertaking surveillance of a particular target. Moreover, telecommunication systems can be designed to be more or less accessible to interception. ...As if the above challenges were not formidable enough, they in turn are compounded by the increasing accessibility of encryption technology. ...
In addition to encryption, law enforcement agencies are concerned about the development and convergence of other technologies such as digital compression, highspeed data links, multiplex cables, and asynchronistic transfer mode technology. These all contribute to reducing law enforcement access to voice and data transmissions. The democratisation of telecommunications technology, that is, its widespread accessibility to ordinary citizens, has begun to make many traditional law enforcement techniques obsolete.
1.14 Although, in democratic countries, the right to privacy of communications is generally accepted, it is also generally accepted that there are certain factors which demand a limitation of this right. Article 8 of the European Convention on Human Rights illustrates this point:
“I. Everyone has the right to respect for his private and family life, his home and his correspondence.II. There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
1.15 This provision of the European Convention on Human Rights is of particular importance for the South African situation for the following reasons:
(a) Section 14 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) guarantees as a fundamental right, the right to privacy, which includes the right not to have “the privacy of their communications infringed.”
(b) The limitations clause in the Constitution provides that the rights in the Bill of Rights (in which section 14 is included), “may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors ....”
1.16 The following observation was made in the Naidoo case regarding the constitutionality of the Interception and Monitoring Act, 1992:6
“What is clear is that, probably after the experience of police methods during the apartheid era, .... the Legislature saw fit to repeal the old provisions relating to interception of personal articles, telephone communications, etc. in terms of which various Ministers could authorize such actions and to replace those provisions with the obviously extremely stringent and limited provisions of the Monitoring Act. Such provisions are, as I have already indicated, in line with similar provisions in other countries....”
1.17 The court also remarked that a concession by the counsel for the defence that the Monitoring Act was a law of general application, the provisions of which complied with the requirements of section 33 of the interim Constitution, was in his view “properly made”.
1.18 It would seem as if the right to the privacy of telecommunications in some respects finds more favourable recognition in the ECHR and for example the German Basic Law, than in the Constitution of the United States of America.7
1.19 There is, in view of the factors set out above, a more compelling reason to review the Interception and Monitoring Prohibition Act, 1992, from a legal point of view. Telecommunications are being used more and more in the organizing and commissioning of crime, especially organized crime, heists and other serious violent crimes. Legal provision should be made to give law enforcement agencies the necessary tools to investigate such crimes as well as other concomitant crimes such as money-laundering. A review of the Act should ensure that the emphasis in the Act should be on crime.
2.1 It has already been pointed out that the right to privacy of communications is a fundamental right, protected in the Bill of Rights (section 14 of the Constitution).
2.2 The Interception and Monitoring Prohibition Act, 1992, is an Act of general application, which provides for the limitation of the above right.
2.3 The Interception and Monitoring Prohibition Act provides for the designation, by the Minister of Justice of a judge in a local or provincial division of the High Court to consider applications for interception and monitoring. In practice, however, only one judge has been appointed for all the Divisions and all applications for interception and monitoring are being considered by that judge. This has been the position since the putting into operation of the Act. It may be argued that, in terms of section 6(b) of the Interpretation Act, 1957 (Act No. 33 of 1957), the reference to the singular in any Act, also includes the plural, unless the contrary is evident from the wording of the Act. Further that there is no reason evident from the Act why a separate judge has to be appointed for each division. In view of these arguments a single judge may be designated for two or more, or all the divisions of the High Court, so long as the designation is linked to divisions.
2.4 There is no differentiation in South Africa regarding the consideration of national security and applications relating to crime investigations for interception and monitoring, respectively: the same judge considers all applications.
2.5 The Interception and Monitoring Prohibition Act, 1992, prohibits -
(a) the interception of a communication which has been or is intended to be transmitted by telephone or in any other manner over a telecommunications line, intentionally and without the knowledge or permission of the dispatcher;
(b) the intentional monitoring of a conversation or communication8 by means of a monitoring device so as to gather confidential9 information concerning any person, body of organization.
2.6 The Act further provides for a mechanism to obtain a direction to intercept/monitor communications. A designated judge may direct that -
(a) a particular postal article or a particular communication which has been or is being or is intended to be transmitted by telephone, or in any other manner over a telecommunication line be intercepted;(b) all postal articles to or from a person, body or organization or all communications which have been or are being or are intended to be transmitted by a telephone or in any other manner over a telecommunication line, to or from a person, body or organization be intercepted;
(c) conversations or communications by or with a person, body or organization, whether a telecommunications line is being used in conducting those conversations or communications or not, be monitored in any manner by means of a monitoring device.
2.7 A direction to intercept/monitor a conversation/communication may be issued by a designated judge if the judge is convinced -
2.8 A “serious offence” is defined in the Act as -
“(a) any offence mentioned in Schedule 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), including any conspiracy, incitement or attempt to commit any offence referred to in that Schedule, provided that -(i) that offence is allegedly being or has allegedly been committed over a lengthy period of time;(ii) that offence is allegedly being or has allegedly been committed on an organized basis, by the person or persons involved therein;
(iii) that offence is allegedly being or has been committed on a regular basis by the person or persons involved therein; or
(iv) that offence may allegedly harm the economy of the Republic; or
(b) any offence referred to in sections 13(f) and 14(b) of the Drugs and Drug Trafficking Act, 1992.”
2.9 The Act does not provide for once-off murder, rape, robbery, etc unless committed in an organized fashion - which may be a serious defect in terms of the high incidence of serious violent crime in South Africa. The court found in the Naidoo case,10 that it would be absurd to suggest that an offence provided for in Schedule 1 would only be regarded as a serious offence if it complied with all the requirements of subparagraphs (i), (ii) and (iii): “Those three paragraphs seem to me to contemplate three different ways of committing a serious crime such as referred to in Schedule 1 to the Criminal Procedure Act”. The three paragraphs should, in the court’s view, be read in the disjunctive. The court remarked as follows:11
“As it is, it seems to me that the requirements of the proviso to paragraph (a) of the definition of “serious crime” are unduly restrictive and likely to impede the proper investigation of some crimes in South Africa. If paragraph (a) of the definition is to be interpreted so as to require compliance with (i) and (ii) and (ii) or (iv) there would not be many offences mentioned in Schedule 1 to the Criminal Procedure Act, 1977, which could be the subject of a direction by a judge as contemplated in sections 2 and 3.”
2.10 An internal, departmental approval to apply to the designated judge is prescribed by the Act. A member of the institution concerned applying for a direction from the designated judge, has to obtain the permission of, in the case of the South African Police Service, an assistant commissioner or a member on the same rank, in the case of the South African National Defence Force of an officer with the rank of major-general, and in respect of the National Intelligence Agency or the South African Secret Service, a member holding a post of at least chief director. In the cases of the South African Police Service and the South African National Defence Force, the officials authorizing the application to the judge, have to be specifically designated by the National Commissioner of the South African Police Service and the Chief of the South African Defence Force, respectively.
2.11 A direction for interception and monitoring may be approved by the Judge for a maximum period of three months and thereafter for a further period not exceeding three months at a time, if the judge is convinced that the extension is necessary for a reason mentioned in section 3(1)(b)(i) or (ii) (serious crime or national security).
2.12 A direction may be executed by a member of the institution concerned, authorized by the officer or member who made the application for the direction. A member who executes a direction or assists with the execution of a direction may at any time enter upon any premises in order to install, maintain or remove a monitoring device, or to intercept or take into possession a postal article, or to intercept any communication, or to install, maintain or remove a device by means of which any communication can be intercepted, for the purposes of the Act.
2.13 In terms of section 5 of the Act any person rendering a postal or telecommunications service is obliged to intercept any telegram or postal article to which the direction applies and hand it over to the member who is authorized to execute the direction. The necessary facilities and devices to enable the member who is authorized to execute a direction must be made available to effect the necessary connections in order to monitor conversations to which the direction applies.
2.14 If a person, body or organization has made a facility, device or telecommunications line available, for the purposes of the Act, the remuneration agreed upon by the person or organisation and the Commissioner of the South African Police Services, the Chief of the South African Defence Force or the Director -general of the Agency or Service, as the case may be, shall be paid to that person, body or organisation for assisting to execute a direction. If no agreement can be reached, a reasonable remuneration must be determined by the Minister for Posts, Telecommunications and Broadcasting with the concurrence of the Minister for State Expenditure in order to compensate the person, body or organisation at least for any costs incurred as a result of any action taken in terms of the Act.
2.15 The Judges-President of the High Court may jointly issue and have jointly issued directives in which the manner and procedure of applications in terms of the Act are uniformly regulated.
2.16 There is a prohibition on the disclosure of any information regarding or gained from interception and monitoring, save for disclosing -
(a) it to any person who of necessity requires it for the performance of his or her functions in terms of this Act;(b) it if he or she is a person who of necessity supplies it in the performance of his or her functions in terms of the Act;
(c) such information which is required in terms of any law or as evidence in any court of law;
(d) it to any competent authority which requires it for the institution, or an investigation with a view to the institution, of any criminal procedure.
2.17 Penalties are provided for unlawful interception or monitoring (a fine or imprisonment for a period not exceeding two years) and for unauthorized disclosure of information regarding or obtained from interception or monitoring to a fine or imprisonment for a period not exceeding five years. The communications/conversations between an attorney and his client are privileged, and may not be intercepted/monitored.12
2.18 There have been requests especially from anti-corruption units to authorize the monitoring of telephone conversations in police institutions on the basis that personnel be informed that their conversations/communications may be monitored. The argument was that such personnel would not have a legitimate expectantion of privacy. (The basis for these arguments could be found in the Protea case.) The following arguments can be raised against such a practice:
* Section 2(1)(b) of the Act, only refers to the intent to “gather confidential information of a person, body or organization, unlike section 2(1)(a) which refers to “without the knowledge or permission of the dispatcher of a communication”.* In the Protea case13 it is stated that “The language of subsection 1(a) points to the sending of telegrams, telefaxes and other similar means of transmission of messages (which seems inappropriate to a person speaking in a telephone), ‘communication’ (which, in the definition of “telecommunications line” in section 1 is distinguished from ‘sound’ and ‘intercept’ (which bears the meaning here to check, cut off (the passage from one place to another), and seems inappropriate to a spoken communication), as well as the fact that subsection (1)(b) is in specific terms directed to a spoken communication. The Shorter Oxford English Dictionary defines monitor as ‘to listen to and report on (radio broadcasts, especially from a foreign country); also to eavesdrop on (a telephone conversation).’ Dictionaries published in the United States furnished a meaning ‘to keep track of by means of an electronic device’ or ‘to scrutinize or check systematically (with a view to collecting certain data).’ These definitions accord with that in section 1 of the Act: “Monitor” includes the recording of conversations by means of a monitoring device.”
* It seems, however, that if a party to a conversation gives his explicit permission for a conversation to be monitored, whether in a normal conversation or telephone conversation, that the prohibition in the Act would not be applicable. With reference to a call from a person demanding ransom, the judge mentioned that “it appears to me that they might escape the prohibition in section 2(1)(b) of the Act on the grounds of consent by one of the parties to the telephone call.” (p. 213).
2.19 The last-mentioned ground does not seem to provide justification to monitor the telephones in a police office only on the basis of a notification to members, especially if that information is to be used in a criminal prosecution as evidence. It would seem as if monitoring in these circumstances should be clearly regulated by the Act.
2.20 This practice does exist in some countries, e.g. Britain. The British Interception of Communications Act, 1985, does not apply to “internal” communications, that is communications systems outside the public network such as a police station. In the case of Halford v United Kingdom14 the court found as follows:
“In particular, in the area of covert surveillance and interception of communications, where there was a lack of public scrutiny and the risk of abuse by public authorities, the domestic law had to afford citizens an adequate indication as to the circumstances and conditions under which the authorities were empowered to resort to such secret measures. It followed that the absence of regulation of the surveillance of internal communications systems under the domestic law, in the instant case, meant that the applicant was not adequately protected against interferences by the police with her right to respect for her private life and correspondence and that there had therefore been a violation of articles 8 and 13 of the Convention, in relation to the interception of the calls, made on her office telephones.”
2.21 It seems that if the issue of monitoring communications on internal telephones were to be regulated properly by law, it might very well be permissible without contravening the European Convention on Human Rights. The question arises of whether this issue should be sanctioned, especially in view of the prevalence of corruption in government, secured environments such as intelligence and the military, and the need to monitor official telephones to ensure that employees do not act against the interests of their employers. It seems, in view of the Protea case that the principle has been accepted in the case of businesses.15 This matter is probably an emotional policy issue which needs to be considered carefully. Flowing from the Halford case, it may be argued that a notification that the calls made from the facilities of a business or institution will be monitored, should be specific rather than general.
2.22 In the Naidoo case16 the court was in favour of excluding evidence obtained in violation of any right in the Bill of Rights. The court was satisfied that the admission of the telephonic conversations in question would render the trial unfair. In this case the direction for monitoring was obtained by submitting false evidence to the judge.
2.23 A matter which is alarming in South Africa, is the large number of advertisements, sometimes even in law journals of private investigators, offering to deliver services which include “bugging”. In view of the fact that only the South African Police Service, the South African Secret Service, the South African National Defence Force and the National Intelligence Agency may be authorized to do interception and monitoring, the legality of monitoring in certain circumstances by private investigators is questionable, especially in regard to instances of third party monitoring.
2.24 In the United States of America the manufacture, distribution, possession and advertising of wire or oral communication intercepting devices are prohibited.17 The devices in question are devices which “render it primarily useful for the purpose of the surreptitious interception of wire or oral communications”. It is accepted that video and recording equipment may be misused for the purpose of illegal and “ surreptitious” monitoring and that the policing of such a prohibition might be problematic. The Irish Law Reform Commission notes that the trade in surveillance devices is regulated in France by decree.18 Provision was made for a list of devices intended to pick up conversations at a distance after consultation with the Conseil d’Etat subjecting the manufacture, importation, possession, display, offering, rental or sale of devices on the list to ministerial authorisation the granting of which was subject to conditions laid down by decree. The Irish Law Reform Commission however points out that no list of devices has been drawn up as of 1 January 1995.
2.25 It is suggested that the aspect of the manufacture, importation, possession, display, offering, rental or sale of surveillance devices should be carefully considered with a view to consider whether a regulatory provision such as that of the USA should not be included in South African law.
3.1 In April 1990, the European Court of Justice condemned France that there was no guarantee of human rights in France, regarding the interception of communications. On 10 July 1991, an Act was published in the Gazette, which provides the legal framework for security interceptions.19
3.2 There is a dual system of authorisation of interception of communications in France. It is accepted that in a democracy it is still necessary to have the power to intercept communications, with the necessary authority and for specified purposes such as law enforcement and the security of the public. Very strict rules have been created in order to control the use of interception in order to ensure its legality. Firstly there is the administratively authorised interception, which may only be used for a period of four months, for security reasons, namely to protect the democracy, to fight terrorism and organised crime and to protect important information relating to national security, the economy of France, counter-espionage and subversion. Political party activities may not be monitored. The Minister of the Interior must request authorisation for this type of interception from the Prime Minister, who is empowered by law to authorise such interception.
3.3 An annual report has to be submitted by the Prime Minister to a special committee, called the Commission nationale de contrôle des interceptiones de securité, to review whether sufficient grounds existed for the authorisation of the interception. The Committee is independent and is appointed for a period of six years at a time. The Commission has wide powers and may ask for further information on a specific case. It may instruct the Prime Minister at any time to terminate an interception. Although the Prime Minister is not bound to the recommendation of the Committee, it is difficult for the Prime Minister not to comply. The power of the Committee lies in its annual Report, which is published at the end of January. In the past the Prime Minister has always followed the recommendations of the Committee. The press also fulfils a watchdog function to ensure compliance to the recommendations of the Committee.
3.4 An administrative monitoring is admissible for a maximum period of four months. It is only as an exception renewed for another four months. A fresh application must be lodged for a renewal, setting out good reasons. The information obtained from administrative or security monitoring, may not be used as evidence in court. Hence, administratively authorised monitoring is used less often. The Judicial Police for example may use a quota of 300 per year, but never fully uses that quota, because it is frustrating not to be able to use the evidence in court. Authorisation for judicially obtained monitoring is easily obtained and implemented. In the case of the judicial police, security monitoring is only used for preliminary investigations. If after 4 months no evidence is found, the monitoring is terminated. If sufficient information results from the monitoring, the Judge is approached to obtain a warrant for a judicial monitoring. In the case of the judicial police, statistics have shown that more than 50% of administrative monitoring is eventually transformed to judicial monitoring.
3.5 Secondly, there is interception authorised by an investigation judge. The judge has to indicate in his authorisation who may be monitored, the grounds on which the person may be monitored, and the period of monitoring. This type of monitoring is only permissible in cases of crimes punishable with imprisonment for a period of 2 years. When the recordings of communications are to be used as evidence, every communication which has been monitored, has to be provided to the defence lawyer on request. No recordings may be destroyed before the finalisation of a criminal trial. If there is no criminal trial, the recordings may not be destroyed before 20 years have elapsed after the recording has been made.
3.6 An administrative monitoring may be transformed into a judicial monitoring by an application to the instructing judge, but a judicial monitoring may not be transformed to an administrative one. A judicially authorised monitoring may be executed for a maximum period of 12 months. During 1991 it was decided that there is no duty to inform any person that his or her communications have been administratively or judicially monitored. This is unlike the position in the Netherlands, Germany and Belgium where there is a duty of disclosure.
3.7 There is no distinction between the various forms of communications which may be monitored, therefore all forms of communications, namely satellite, fax, data, GSM mobile phones, fixed telephones, etc. may be monitored. Judicial authorisation for monitoring is not subjected to scrutiny by the Commission which scrutinises the administrative authorisation for interceptions.
3.8 Entry for purposes of executing an authorisation for interception is not regulated in the law concerned. Service providers of communication networks are responsible to execute authorisations concerning telecommunication interceptions. Only the police service may make use of judicial authorisation for monitoring. Communications between a lawyer and his client are privileged, and may not be monitored. Where a lawyer is involved in crime, his communications may be monitored, but the chairman of the association of lawyers (the “batogne”) for that area has to be notified that a lawyer is being monitored.
3.9 The distribution of quotas in regard to interceptions are as follows:
* National Police : 1200;* Judicial Police : 300;
Total number for one year : 1500
4.1 Interceptions for security purposes are being performed by the Binnelandse Veiligheidsdienst (BVD). Interceptions may be authorised by the Prime Minister on application by the Minister of the Interior. A list of interceptions being performed must be submitted to a Council of Ministers for scrutiny every three months. Where crime is involved, monitoring of communications may be ordered by the investigating judge for the purpose of monitoring a suspect’s communications. This is the case where the investigation urgently requires so and the suspicion relates to a serious offence for which an accused may be remanded in custody.
4.2 Monitoring is primarily aimed at obtaining evidence to be used in court, and the result of a “wiretap” may be used in evidence in the trial for the offence for which the wiretap was ordered. However, if the judge or police uncover other offences, the information concerning those offences may also be used as evidence when the other offences are tried in a subsequent trial. All investigating judges (onderzoeksrechters) are empowered to authorise the interception of communications. These judges are appointed from the ordinary corps of judges for a specific period in order to give guidance in respect of criminal investigations. The law does not set down a specific period for which a monitoring may be authorised, but in practice all authorisations are reconsidered after a period of four weeks. Extensions are also granted for periods of four weeks. The process is very informal. The investigation judge must be convinced that the authorisation should be extended. Interception or monitoring of communications may only be authorised if there is no less intrusive ways to investigate the case or obtain the evidence. In general it is accepted that monitoring is less intrusive than a physical search.
4.3 The following communications may be monitored or intercepted:
* Letters;* Faxes;
* Data transmissions;
* E-mail, and in terms of a Bill still being considered, Internet;
* Telexes;* Telephone conversations (including all types of mobile and cellular phones);
* Oral communications are in terms of the Bill, presently considered.
4.4 In practice, the prosecutor applies to the investigation judge for an authorisation to monitor communications. In a recent research report it was concluded that “wiretapping” is more frequently applied in the Netherlands than in Germany, the UK and the USA and that the interception of telephone communications is in practice felt to be a rather efficacious investigative method.20
4.5 A recent Telecommunications Bill privatises the telecommunications service providers. At present there are two mobile telephone operators, but it is expected that there will soon be more. Telecommunication service providers have to provide the means to monitor communications at their own costs. In terms of the Penal Code service providers commit contempt of court and are liable to imprisonment for a period of three months if they do not assist with the execution of a legal order. In extreme cases, the licence of a service provider may be revoked if he or she does not comply with an order for the monitoring of communications. The monitoring equipment used in duplicating an communication is the property of the service provider and a signal is duplicated and sent to the police for recording/monitoring. The legislation of the Netherlands complies with the guidelines of the European Court.
4.5 The subject of a security monitoring is never informed that his or her communications have been monitored. The person subjected to monitoring pursuant to an investigating judge’s order, has to be informed of the monitoring if the disclosure will not jeopardise the investigation. There is presently a Telecommunications Bill before the First House of Parliament containing a general confidentiality clause which will protect the confidentiality of monitoring. Prisoners may be monitored if they are informed that the monitoring of communications are being done in specific areas of the prison. Bomb threats may be monitored without prior authorisation. Government employers or private employers may monitor state or business phones if they inform their employees beforehand that it will be done. Any person may record his own communications without the permission or knowledge of the other party.
4.6 Traffic data (call related data) may be obtained even when interception or monitoring is not being done. A prosecutor has to apply to the investigation judge for authorisation to obtain such data. The following communications are privileged and may not be monitored, namely those of -
* A religious minister/priest and a member of the church;* A medical practitioner and his or her patient.
* A lawyer and his client, unless they are both suspects in a crime.
4.7 The Telecommunications Bill21 provides that private dwellings, vehicles, offices, etc. may be bugged. The process of control over recordings, sealing of such recordings, etc. are informal. Clause 13.1 of the Bill provides that telecommunication service providers may only provide such telecommunications services to their clients which are capable of being monitored (aftapbaar zijn). The Bill provides for rules to be made to determine the technical ability to monitor communications. Telecommunication network providers are obliged In terms of clause 13.2 to co-operate in the execution of a direction for the interception or monitoring of a communication. In the explanatory documents to the Bill the following is stated:
“De aanbieders van openbare telecommunicatienetwerken en openbare diensten tappen niet self af- dit is voorbehouden aan bevoegde instanties -maar faciliteren slechts het aftappen door op grond van wettelijke bepalingen tijdig organisatorische en technische maatregelen te treffen. Om te kunnen voldoenen aan deze wettelijke bepalingen moeten kosten gemaakt worden. Deze kosten vloeien dus voort uit wettelijke verplichtingen en hebben geen betrekking op het aftappen zelf. Vanuit dit oogpunt ligt het voor de hand dat deze kosten niet langer door de staat maar door de aanbieders gedragen worden”.
4.8 The reason for shifting the burden of the liability for the costs for the capability to intercept or monitor to the Service providers, is stated as follows: “De staat wordt kortom gekonfronteerd met de gevolgen van de technische ontwikkelingen op het gebied van de telecommunicatie in de vorm van steeds hogere rekeningen voor de aftappen”. Certain costs will, however, still be borne by the state- the Ministry for the Interior will continue to pay costs relating to security investigations. The costs for the installation of monitoring rooms and the rental for the communications lines to the monitoring centres are being borne by the Ministry for the Interior and the Department of Justice. Other costs for which the state remains responsible, are the administrative and personnel costs relating to a specific monitoring or request for call related data. The Bill also grants the power to the Minister of Communications to extend the obligation to ensure the monitoring of communications to private persons or groups of persons.
5.1 The monitoring of communications in Belgium is regulated by the “wet van 30 juni 1994-ter bescherming van de persoonlijke levenssfeer tegen het afluistereren, kennisnemen en openen van privécommunicatie en telecommunicatie”. Private conversations and private telecommunications are addressed in the Act. In Belgium bugging of a private dwelling is only permissible with the authorisation of the owner or occupant of the dwelling. All communications which may be monitored in terms of the Belgium law must be recorded. The duration of an order for monitoring is one month and on expiration of the period it may be extended to six months. After six months a new application must be lodged. Each recording must mention the subject of the monitoring and the date of execution. In order to prevent misuse these particulars must automatically be mentioned with the recording, although it is not legally required. A warrant for a interception and monitoring may only be granted in cases of serious crime, namely terrorism, gang crimes (banditism), and organised crime. Monitoring, recording, listening to private communications and private telecommunications, except for the cases provided for by the law and authorised in terms of the law, are punishable as is the misuse or attempted misuse of a lawfully recorded monitoring. In cases of blackmailing or extortion the “Procureur des Konings” may order monitoring for a period not exceeding 24 hours, thereafter it has to be confirmed by an investigation judge (“onderzoeksrechter”).
5.2 When the co-operation of the network operator is required for the execution of an order for monitoring, the investigation judge must issue two orders, namely one for the judicial police and one for the network operator. The network operator is only required to provide technical co-operation. The order to the judicial police must set out the date, the concrete facts of the case, the reasons for issuing the order, the subject of the order, the communications medium to be monitored, the location of any object which must be intercepted in terms of the order, and the period for which the interception and monitoring is authorised (which may not exceed one month), and the name and position of the officer of the judicial police to whom the order is addressed for execution. The order may be null and void if any of these particulars are omitted.
5.3 The network operator does not for security reasons receive the same detailed information. The order only provides the date of the order, the number of the subject and the period for which the interception and monitoring is authorised to the network provider. Employees of the network operator are bound by secrecy. The investigation judge may only appoint an officer of the judicial police to execute the order and the officer may be assisted by agents of the judicial police. The names of these agents must be provided to the investigating judge beforehand. The officer responsible to execute the order must report in writing back to the investigation judge at least every five days. The officer concerned must hand over all recordings, transcriptions and translations to the investigation judge. The investigation judge decides which information is important for the investigation and he orders the drafting of a process verbal of the information. The order for monitoring, the process verbal and the five day reports of the investigation officer are filed in the investigation docket. When the monitoring is concluded, all information which has not been included in the investigation docket, is destroyed by the investigation judge and record is kept of such destruction. The recordings, the transcriptions and copies of the process verbal are sealed and kept by the “griffie” (master). The communications of doctors and advocates are privileged.
6.1 The European Union Standards, entitled “Internationale Anforderungen für die rechtmässige Überwachung des Telekommunikationsverkehrs”, January 1995, are also applicable in Germany.
6.2 The catalogue of purposes for which and the crimes in respect of which interception may be used in Germany, are listed in the Code of Criminal Procedure in article 108 and includes criminal association, murder, manslaughter, currency related offences, robbery, extortion, drugs, treason, and espionage. The Secret Service and Customs are also permitted to use interception of communications in their investigations.
6.3 As a rule, an investigation judge may authorise the interception for a maximum period of 90 days. In an emergency, when a judge is not available, a prosecutor may authorise interception for a period of three days. Extension of the initial period of 90 days is only allowed with the submission of the successes obtained during the initial period. In practise, the police approaches the prosecution, after being authorised by a senior police official. The judge is then approached by the prosecution. It must be proved that monitoring is the last available investigation method or that other investigation methods have failed. Postal articles may be intercepted in terms of postal legislation. All telecommunications communications , namely fax, data, etc may be authorised to be monitored. Oral communications in offices dwellings, etc, may in future be intercepted in terms of a new law which came into operation on Saturday, 9 May 1998.22
6.4 Other rules apply to the Secret Service and Customs. Customs also have to obtain judicial authorisation for monitoring communications. The Intelligence Services have a parliamentary control body which consists of five senior political officials. Members of the Bundestag (Federal Parliament) exercises control over foreign intelligence surveillance.
6.5 All the service providers in the telecommunications market have been privatised since 1 January 1998. Deregulation was effected by the Telecommunications Act. All mobile phone network providers have been private from the outset. There are special provisions in the licensing agreements of the service providers which are regulated by the Telecommunications Act. All service providers must render assistance with the execution of monitoring orders. The service providers have to install all software and hardware to intercept or monitor telecommunications and the Police buy the recording equipment only. If service providers do not comply, their licences can be revoked.
6.6 Call related data as old as 80 days can be obtained by the prosecution. The costs relating to interceptions are fixed by law. Investigators have the right to request call related data from the service provider. The costs for a telecommunications line is 40 DM. The costs per call intercepted is paid by the Department of Justice. Manpower costs of the service provider as well as 125 DM per interception is payable.
6.7 All parties have to be informed by the prosecution of the interception after the conclusion of the interception, provided that follow-up investigations are not jeopardised by such communication. Two copies of the monitored communication are made, one is sealed for evidential (court purposes) and the other copy is used for investigation purposes. The only privileged communications are the communications between a lawyer and his client. Only the network operators are empowered to activate the monitoring.
7.1 The Interception of Communications Act of 1985 came into force on 10 April 1986.24 Its objective was to provide a clear statutory framework within which the interception of communications on public systems would be authorized and controlled in a manner commanding public confidence.
7.2 A “public” telecommunications system is defined as a telecommunications system which is run pursuant to a licence granted under the Telecommunications Act 1984 and which has been designated as such by the Secretary of State.25 Anyone who in terms of section 1(1) of the Act intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence. Section 1(2) and (3) provides four circumstances in which a person who intercepts communications will not be guilty of the offence, namely:
* If the communication is intercepted in compliance with a warrant issued by the Secretary of State;* If the person performing the interception has reasonable grounds to believe that the person to whom or from whom the communication is sent, has consented to the interception;
* If the communication is intercepted for purposes connected with the provision of postal or public telecommunications services or with the enforcement of any enactment relating to the use of those services;
* If the communication is being transmitted by wireless telegraphy and is intercepted, with the authority of the Secretary of State, for purposes of the issue of licences under the Wireless Telegraphy Act, 1949 or the prevention or detection of interference with wireless telegraphy.
7.3 Section 9 of the 1985 Act provides that no evidence shall be adduced by any party, in any proceedings before a court or tribunal, which lends to suggest either that an offence under section 1 of the 1985 Act has been committed by a public servant or that a warrant has been issued to such a person under section 2 of the 1985 Act. Sections 2 to 6 of the 1985 Act set out detailed rules for the issuing of warrants by the Secretary of State for the interception of communications and the disclosure of intercepted material. Section 2(2) of the 1985 Act provides as follows:
“The Secretary of State shall not issue a warrant ... unless he considers that the warrant is necessary -(a) in the interests of national security;(b) for the purpose of preventing or detecting serious crime; or
(c) for the purposes of safeguarding the economic well-being of the United Kingdom.”
7.4 When considering whether it is necessary to issue a warrant, the Secretary of State must take into account whether the information which it is considered necessary to acquire could reasonably be acquired by other means.26 The warrant must specify the person who is authorized to do the interception, and give particulars of the communications to be intercepted, such as the premises from which the communications will be made and the names of the individuals concerned.27 A warrant cannot be issued unless it is under the hand of the Secretary of State himself or, in an urgent case, under the hand of a senior official where the Secretary of State has expressly authorized the issue of the warrant. A warrant issued under the hand of the Secretary of State is valid for two months; one issued under the hand of an official is only valid for two working days. In defined circumstances, warrants may be modified or renewed.28
7.5 Section 6 of the Act provides, inter alia, for the limitation of the extent to which material obtained pursuant to a warrant may be disclosed, copied and retained. The Act also provides for the establishment of an Interception of Communications Tribunal. The tribunal consists of five members, each of whom must be a lawyer of not less than ten years’ standing, who hold office for five years subject to re-appointment.29
7.6 Any person who believes, inter alia, that communications made by or to him may have been intercepted in the course of their transmission by means of a public telecommunications system can apply to the tribunal for an investigation. If the application does not appear to the tribunal to be frivolous or vexatious, it is under a duty to determine whether a warrant has been issued, and if so, whether it was issued in accordance with the Act. In making this determination, the tribunal applies the principles applicable by a court on application for judicial review.30
7.7 If the tribunal determines that there has been no breach of the Act, it will inform the complainant, but it will not confirm whether there was no breach because there was no authorized interception or because, although there was such an interception, it was justified under the terms of the Act. In cases where the tribunal finds there has been a breach, it has a duty to make a report of its findings to the Prime Minister and a power to notify the complainant. It also has the power, inter alia, to order the quashing of the warrant and the payment of compensation to the complainant. The tribunal does not give reasons for its decisions and there is no appeal from a decision of the tribunal.31
7.8 The Act also makes provision for the appointment of a Commissioner by the Prime Minister. The first Commissioner was Lord Justice Lloyd (now Lord Lloyd), succeeded in 1992 by Lord Bingham, who was a senior member of the judiciary, and who was also succeeded in 1994 by a senior member, namely Lord Nolan.
7.9 The Commissioner’s functions include reviewing the carrying out by the Secretary of State of the functions conferred on him by sections 2 to 5 of the 1985 Act, reporting to the Prime Minister breaches of sections 2 to 5 of the Act which have not been reported by the tribunal and making an annual report to the Prime Minister on the exercise of his functions. This report must be laid before Parliament, although the Prime Minister has the power to exclude any matter from it the publication of which would be prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report must state if any matter has been excluded.32
7.10 In general, the reports of the Commissioner to the Prime Minister have indicated an increase in new warrants issued, but the commissioner has been satisfied that in all cases those new warrants were justified under section 2 of the Act.
7.11 The English common law provides no remedy against interception of communications, since it places no general constraints upon invasions of privacy as such.
7.12 The Hong Kong Commission noted that in the United Kingdom the provisions of the Interception of Communications Act has been extended to the regulation of surveillance when conducted by the secret services. The Security Service Act 1989 applies to MI5 and the Intelligence Services Act 1994 applies to MI6. The Commission stated that the genesis of the 1989 Act was a ruling of the European Commission of Human Rights regarding complaints by office holders of the National Council for Civil Liberties (NCCL), an unincorporated association which works to monitor and defend civil and political rights in the United Kingdom. They explain that complaints arose from allegations that the office holders had been the subject of surveillance by MI5. The Hong Kong Commission pointed out that allegations were made by a former MI5 officer, in a television interview in 1985 and repeated in an affidavit sworn for the purposes of a judicial review, and, in line with government policy of not disclosing information about the operations of the Security Service, the United Kingdom neither confirmed nor denied the applicant's allegations.
7.13 The Hong Kong Commission pointed out that the European Commission noted that although the applicants did not allege that they were specific targets of telephone or mail intercepts, their evidence was that they had been subject to "indirect interception", i.e. the recording of information about them which appeared in the telephone or mail intercepts of targets. They further remarked that the Commission found that there was a reasonable likelihood that the applicants were the subject of secret surveillance and it therefore had to consider whether such interference was "in accordance with the law". The Hong Kong Commission explained that the Commission applied the Malone test of a law which is sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which surveillance may apply, that the Commission noted that the Security Service exists for the exclusive purpose of the defence of the Realm and that the Security Service's activities were governed by a Directive, but not authorised by law:
"Members of the Security Service are public officials but unlike, for example, police officers, immigration officers or officers of HM Customs and Excise, they have conferred on them not special powers whether under any law or by virtue of the Directive. Although the Directive is published, it is not claimed by the Government that it has the force of law or that its contents constitute legally enforceable rules concerning the operation of the Security Service. Nor does the Directive provide a framework which indicates with the requisite degree of certainty the scope and manner of the exercise of discretion by the authorities in the carrying out of secret surveillance activities."
7.14 The Hong Kong Commission noted that the Commission accordingly found that there had been a violation of article 8 of the European Convention because the surveillance was carried out by a body which had no legal authority, and therefore was not authorised by law. They further pointed out that the legislation was introduced anticipating an adverse ruling to similar effect by the European Court and that MI6, the security service concentrating on foreign intelligence, and the Government Communications Headquarters was also now put on a statutory footing under the Intelligence Services Act 1994. The Hong Kong Commission remarked that that Act also establishes a system of parliamentary accountability of both these services and MI5 and that section 1 of the Security Service Act 1989 sets out the function of the Service (i.e. MI5) as follows:
"[It] shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means. ...It shall also be the function of the Service to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands. "
7.16 The Hong Kong Commission considered that this explication, if not an exhaustive definition, of "national security" is useful, in view of former United States Attorney General Griffen Bell's comment that "national security" has become a "talismanic phrase" which has been used "to ward off any questions about the legitimacy of any governmental conduct to which the phrase was applied." The Commission noted that the general structure of the legislation is similar to that of the Interception of Communications Act and the main components are a warrant system to authorise intrusions, provision for their renewal or cancellation, the appointment of a senior judge as Commissioner, and the establishment of a tribunal to consider complaints. They also pointed out that section 3 of the 1989 Act provides that "no entry on or interference with property shall be unlawful if it is authorised by a warrant". The Hong Kong Commission emphasised that section 5 of the 1994 Act is wider and provides that a warrant can authorise any of the three secret services (MI5, MI6, and Government Communications Headquarters) to interfere with property, trespass on land or interfere with wireless transmissions.
8.1 The Foreign Intelligence Surveillance Act (FISA) established procedures for judicial regulation of surveillance activities undertaken in the furtherance of national security interests.33 The Foreign Intelligence Surveillance Court (FISC) is established In terms of article 1803 of the Act. Seven circuit court judges are designated by the Chief Justice to hear applications for and pass judgment on foreign intelligence surveillance orders. An appellate level court, comprised of both district and circuit court judges appointed by the Chief Justice, which review denials of FISA applications is also established in terms of the Act. Judges at both levels may sit for up to seven years, and may not be reappointed. Denials at the appellate level may be appealed to the Supreme Court.
8.2 A federal officer may, with the Attorney-General’s approval apply to a FISC judge for a court order to conduct FISA surveillance. Such an order is valid for ninety days. Guidelines which regulate the use of information gained by FISA surveillance are provided for in section 1807 (a)-(d) of the Act.
8.3 The Act provides for judicial authorization to do electronic surveillance in respect of the international communications of United States citizens and resident aliens, and protects such communication from eavesdropping without court order regardless of where the surveillance is conducted. By definition, electronic surveillance is the acquisition by means of surveillance devices of any wire or radio communication sent or received by a United States person (including both a citizen or resident alien) in which that person has a reasonable expectancy of privacy.
8.4 The privacy expectation requirement excludes commercial broadcasts, home radios and citizen band broadcasts. Section 1801 (f)(4) includes oral communication, and the installation of beepers and television cameras. This paragraph is inapplicable in consent surveillance situations, as no right of privacy exists in such circumstances. FISA does not regulate the use of a body microphone by a consenting informant.
8.5 The Act only applies if the surveillance is intended to acquire “foreign intelligence information”, of which there is five definitions: “the first three definitions include information which relates to, and, if concerning a United States person, is necessary to the ability of the United States to protect against: (1) actual or potential attack, (2) sabotage or terrorism, or (3) clandestine intelligence activities. Actual or potential attack encompasses information regarding foreign military strength and intentions. Clandestine intelligence activities includes ‘classic counter intelligence information’, but not, for example, information related to political activity within the United States by United States persons or to information necessary to ascertain the degree of involvement in such groups by foreign powers.”34
8.6 Other interests included in the definition are security and national defence, and the conduct of the foreign affairs of the United States. It is, however, required that there must be a direct relation to a United States person’s activities on behalf of a foreign power. A foreign power or agent thereof includes foreign embassies and counsellors as well as other “official foreign government establishments.” It could also include different factions of foreign nations which are foreign based and controlled. International terrorist groups are also included in the definition.
8.7 Under section 2516 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, now codified as 18 U.S.C. §§ 2510-20 of 1994, the Attorney-General, Deputy Attorney-General, Associate Attorney-General, or any assistant Attorney-General specially designated by the Attorney-General, may authorize an application to a federal judge of competent jurisdiction for, and such judge may grant an order authorizing or approving the interception of wire or oral communications by the Federal Bureau for Investigation, a Federal Agency having responsibility for the investigation of the offence as to which the application is made, when such interception may provide or has provided evidence of -
8.8 The procedure for obtaining an order for interception is prescribed in article 2518. All such applications must be made in writing upon oath or affirmation. Upon such application, the judge may enter an ex parte order, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determined on the basis of the facts submitted to him that -
(a) there is probable cause to belief that an individual is committing, have committed or is about to commit a particular offence enumerated in the Act;(b) there is probable cause for belief that particular communications concerning that offence will be obtained through such interception;
(c) normal investigative methods have been tried and have failed or reasonably appear to be unlikely to succeed if tried, or too dangerous;
(d) there is reasonable cause to belief that the facilities from which, or the place where, the wire or oral communication are to be intercepted, are being used, or are about to be used in connection with the commission of such offence, or are leased to, listed in the name of, or commonly used by such person;
8.10 The judge may direct that a communication common carrier, landlord, custodian or other person must furnish the applicant of the order forthwith with all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference. Any services rendered in this regard must be compensated.
8.11 The order may not authorize interception for a period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. Extensions of the order may be granted on application made in the same manner as the initial order, for a further maximum period of 30 days at a time. The order may require reports to the judge on the execution thereof.
8.12 There is provision for interception without an order in emergency situations, namely if an emergency exists that involves -
(a) immediate danger of death or serious physical injury to any person;(b) conspirational activities threatening the national security interest; or
(c) conspirational activities characteristic of organized crime.
8.13 A proper application must, however, be made within 48 hours after the interception has occurred, or begins to occur. Such interception must immediately terminate when the communication sought is obtained, or when the application is denied, whichever is earlier.
8.14 Section 2511 of Title III punishes the wilful interception of wire and electronic communications, the wilful use of intercepting devices already installed and the wilful disclosure or use of the content of intercepted communication by any person knowing or having reason to know that the information in question has been thus obtained, each of which amounts to an independent offence with not more than five years imprisonment or a fine or both.
8.15 Evidence acquired in violation of the relevant legislation (unauthorized interception) are inadmissible in any trial, hearing or other proceedings.35
8.16 The Communications Assistance for Law Enforcement Act (CALEA) was adopted, inter alia, to regulate the obligations of telecommunications service providers.36 The law also sets out the requirements for the surveillance of wire or electronic communications in regard to law enforcers. The primary purpose of the CALEA is to clarify a telecommunications carrier’s duty to assist law enforcement agencies with the lawful interception of communications and the acquisition of call-identifying information. To ensure that law enforcement agencies can continue to conduct authorized surveillance of wire or electronic communications, the CALEA states that telecommunications car