Anti-Terrorism Authority Under the Laws of the United Kingdom and the United States
Prepared for Members and Committees of Congress
This is a comparison of the laws of the United Kingdom and of the United States that govern
criminal and intelligence investigations of terrorist activities. Both systems rely upon a series of
statutory authorizations: in the case of the United States primarily the Foreign Intelligence
Surveillance Act and the Electronic Communications Privacy Act; in the case of the United
Kingdom, the Regulation of Investigatory Powers Act, the Police Act, the Intelligence Services
Act. Among other differences, the U.S. procedures rely more heavily upon judicial involvement
and supervision, while those of the UK employ other safeguards. The UK procedures afford
greater latitude to arrest, detain and supervise suspected terrorists than those available in the
Introduc tion ..................................................................................................................................... 1
Police Stop and Search Powers.......................................................................................................2
Police Arrest Powers.......................................................................................................................4
Detention of Suspected Terrorists....................................................................................................4
Surveill ance .................................................................................................................................... 11
Surveillance Under the Regulation of Investigatory Powers Act............................................12
Authorizations for Intrusive Surveillance...............................................................................15
Surveillance Commissioner’s Review of Warrants.................................................................16
Wiretapping and Electronic Eavesdropping............................................................................17
Sharing Information Intercepted.............................................................................................22
Parallel Police Regime Under the Police Act 1997.................................................................23
Authorizations for Interference with Property or Wireless Telegraphy under the
Intelligence Services Act 1994.............................................................................................24
The Security Services and Domestic Surveillance..................................................................25
Use of Intercepted Communications as Evidence in Court.....................................................27
Oversight of the Interception of Communications..................................................................29
Complaints Procedures for Interception of Communications.................................................30
Acquiring Communications Data..................................................................................................32
Author Contact Information..........................................................................................................36
This is a comparison of the law of the United States (U.S.) and United Kingdom (UK) relating to 1
the authority to investigate terrorism. It focuses primarily upon the procedures for conducting
searches and seizures including the interception of communications, arresting and detaining 2
suspected terrorists, and control orders restricting the activities of suspected terrorists.
The most obvious difference between the laws of the two countries is that in the UK approval of
extraordinary authority including the issuance of warrants often remains an executive function
and in the United States the task more often falls to the courts. In addition, authority in the United
States only roughly approximates at best the power of UK officials to arrest and detain suspected
terrorists and to subject them to control orders. On the other hand, U.S. officials appear to enjoy
greater flexibility in the use of intercepted communications for evidentiary purposes.
Many of the differences can be understood in light of the reach of the Fourth Amendment to the
United States Constitution. The Fourth Amendment condemns unreasonable governmental 3
searches and seizures. It applies where there is a justifiable expectation of privacy and does not 45
apply there is not. It does not apply to consensual searches nor to the overseas search of the 6
property of foreign nationals with no substantial connection to the United States. The
Amendment begins with the presumption that a search or seizure is unreasonable unless
conducted pursuant to a warrant issued by a neutral magistrate and upon a showing of probable 7
cause to believe a crime has been committed.
There are many circumstances, however, in which a search or seizure will be considered
reasonable notwithstanding the absence of a warrant or of probable cause or of both. Thus, border 8
inspections require neither warrant nor suspicion, nor does a procedure which allows officers to 9
stop and search parolees. Incident to a valid arrest, law enforcement officers may search a 10
suspect without probable cause to believe the suspect possesses evidence or a weapon. They
may arrest a suspect without a warrant when they have probable cause to believe he has 11
committed a felony, and may conduct a brief investigative stop with less than probable cause
when, given all of the circumstances, they have “a particularized and objective basis for 12
suspecting”an individual is engaged in or about to engage in criminal activity. When acting in
the interests of certain special needs, such as highway safety or student health and safety,
1 This report has been prepared under the joint auspices of the Law Library of Congress and the Congressional
2 It does not include a discussion of the National Security Agency (NSA) activities discussed in the press, since the
particulars of those activities are not publicly available.
3 Katz v. United States, 389 U.S. 347, 353 (1967); see also 389 U.S. at 361 (Harlan, J., concurring).
4 Smith v. Maryland, 442 U.S. 735, 739-41 (1979).
5 Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
6 United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990).
7 Katz v. United States, 389 U.S. 347, 357 (1967).
8 United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004).
9 Samson v. California, 126 S.Ct. 2193, 2202 (2006).
10 New York v. Belton, 453 U.S. 454, 457 (1981).
11 United States v. Watson, 423 U.S. 411, 423-24 (1976).
12 United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Singh, 415 F.3d 288, 294 (2d Cir. 2005).
government officials may engage in warrantless, suspicionless searches.13 When acting solely in
the name of national security, government officials may not engage in warrantless searches and 14
seizures relating to a suspected domestic terrorist. Whether and to what extent they enjoy greater 15
latitude when focused on the activities of foreign powers and their agents is less clear.
The statutory basis for stop and searches by the police in the UK is contained in the Police and 16
Criminal Evidence Act 1984, which provides the police can stop and search and individual if
they have reasonable suspicion that a crime has been, is being, or is about to be committed.
Statistics show that under the provisions of this Act the police stopped black people six times 17
more frequently than white people and Asian people two times more frequently. The police were
provided with broader authority to stop and search people under the Terrorism Act 2000 that
permits officers, with authorization from a senior officer, to stop and search anyone to prevent 18
terrorism. Statistically, Asian and black people are respectively four and five times more likely 19
to be stopped than white people under this Act.
These statistics, combined with the Code issued under the Police and Criminal Evidence Act and
the Home Office Stop and Search Interim Guidelines provide that while the police must “not
discriminate against members of minority ethnic groups when they exercise these powers ...
[t]here may be circumstances where it is appropriate for officers to take account of a person’s
ethnic background when they decide who to stop in response to a specific terrorist threat (for
example, some international terrorist groups are associated with particular ethnic groups, such as 20
Muslims).” This Code of Practice has given rise to the claim that the British police use ethnic
13 Michigan Department of State Police v. Sitz, 496 U.S. 444, 455 (1990); Vernonia School District v. Acton, 515 U.S.
14 United States v. United States District Court (Keith), 407 U.S. 297, 321 (1972).
15 The Keith Court emphasized that its opinion did not intend to express any opinion as to the President’s national
security powers “with respect to activities of foreign powers or their agents.” 407 U.S. at 321-22. Congress passed the
Foreign Intelligence Surveillance Act (FISA) in response to Keith. “Before Congress enacted FISA, virtually every
circuit that addressed the issue held that there is a ‘foreign intelligence’ exception to the [Fourth Amendment’s] general th
warrant requirement. See United States v. Truong, 629 F.2d 908, 913 (4 Cir. 1980); United States v. Buck, 548 F.2d th
871, 875 (9 Cir. 1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir. 1974); United States v. Brown, 484 F.2d th
418, 426 (5 Cir. 1974); cf. Zweibon v. Mitchell, 516 F.2d 594, 651 (D.C.Cir. 1997)(noting in dicta warrantless foreign
intelligence surveillance is unlawful).” United States v. Marzook, 435 F.Supp.2d 778, 792-93 (N.D. Ill. 2006)(cited
cases handed down after the 1978 enactment of FISA were passed on earlier law). Subsequent case law concerning
warrantless foreign intelligence surveillance apart from FISA is extremely sparse and in many respects has only begun
to develop. United States v. Bin Laden, 126 F.Supp.2d 264, 285 (S.D.N.Y. 2000); Hepting v. AT&T Corp., 439
F.Supp.2d 974 (N.D.Cal. 2006); American Civil Liberties Union v. National Security Agency, 438 F.Supp.2d 754
16 Police and Criminal Evidence Act 1984, c. 60.
17 Home Office, Statistics on Race and the Criminal Justice System 2003, 2004, available at http://www.cre.gov.uk/
18 Terrorism Act 2000, §44. The authorization can only last up to twenty-eight days, but has reportedly been
consistently renewed over the past six years. See generally Arun Kundnani, Racial Profiling and Anti Terror Stop and
Search, IRR NEWS, Jan. 31, 2006, available at http://www.irr.org.uk/2006/january/ha000025.html.
19 Terrorism Act 2000, §44, Home Office, Statistics on Race and the Criminal Justice System 2003, 2004, available at
20 Police and Criminal Evidence Act 1984, Code A: Code of Practice for the Exercise by Police Officers of Statutory
Powers of Stop and Search, available at, http://www.homeoffice.gov.uk/docs/pacecodea.pdf and Home Office, Stop
and religious profiling in their policing, a claim that both the government and the police have 21
actively worked to dismiss.
The government has noted that the enactment of the recent anti-terrorism laws led to “a palpable 22
increase in stopping and searching of people of Asian origin in particular.” The government
expressed concern that tensions with the Muslim community in particular are not exacerbated,
because it is believed that the isolation and the stigmatization, perceived, or otherwise,
contributes towards the disenfranchising of Muslims, providing extremists with the opportunity to
recruit these individuals. An expert witness in a panel reviewing the use of anti-terrorism stop and
search powers has noted “one of the biggest dangers of counter-terrorism policing must be that it 23
will grow the very terrorism which it seeks to defeat.”
Against this background, in the wake of the London bombing in July 2005, the Chief Constable
of British Transport Police (BTP) publicly stated: “We should not waste time searching old white
ladies. [Searches are] going to be disproportionate. It is going to be young men, not exclusively, 24
but it may be disproportionate when it comes to ethnic groups.” The government quickly
distanced itself from this remark noting that intelligence-led stop and searches should be utilized 25
rather than stereotyping ethnic minorities because “tackling terrorism is absolutely dependent on
the confidence of these communities to feel that they can come forward, give information and be 26
part of the fight against this threat.”
In the United States as noted earlier, the Fourth Amendment permits parolees to be stopped and 27
searched without warrant or suspicion. And law enforcement officers may conduct a brief
investigative stop when given the circumstances they have “a particularized and objective basis 28
for suspecting” that criminal activity is afoot. Nevertheless invidious racial, ethnic, or religious 29
discrimination in law enforcement is unlawful, and the consideration of such factors standing
alone “and sometimes even in tandem with other factors, does not generate reasonable suspicion 30
for a stop.”
and Search Action Team: Interim Guidelines, available at http://www.privacyinternational.org/issues/terrorism/library/
ukstopsearchguidance2004.pdf (last visited Apr. 12, 2006).
21 Mark Oliver, Blears backs away from racial profiling, Aug. 2, 2005, GUARDIAN (London) available at
22 Home Office, Race Relations and the Police, available at http://www.homeoffice.gov.uk/police/about/race-relations/
(last visited Apr. 12, 2006).
23 Metropolitan Police Authority, Progress report on MPA Stop and Search Scrutiny, Report 9, by the Commissioner,
Oct. 16, 2003, available at http://www.mpa.gov.uk/committees/eodb/2003/031016/09.htm. See also Metropolitan
Police Authority, Report of the MPA Scrutiny on MPS Stop and Search Practice, Feb. 2004, available at
24 Metropolitan Police Authority, Community Engagement to Counter Terrorism, Report 9, Chief Executive and
Assistant, Jan. 26, 2006, available at http://www.mpa.gov.uk/committees/mpa/2006/060126/09.htm.
25 No Racial Profiling by Anti-Terror Police, Says Minister, TIMES (London), Aug. 2, 2005, available at
27 Samson v. California, 126 S.Ct. 2193, 2202 (2006).
28 United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Singh, 415 F.3d 288, 294 (2d Cir. 2005).
29 U.S. Const. Amends. V, XIV; 18 U.S.C. 242.
30 United States v. Swindle, 407 F.3d 562, 569-70 (2d Cir. 2005) (citing United States v. Brignoni-Ponce, 422 U.S. 873,
885-87 (1975), inter alia).
Police powers in the UK under the Terrorism Act 2000 are wide-ranging and there are concerns
over opportunities for abuse. The Act permits investigations into the resources of proscribed
organizations and the commission, preparation, or instigation of acts that are offenses under the
Act. Police can arrest individuals without a warrant based on a reasonable suspicion that they
have been involved in the preparation, instigation, or commission of acts of terrorism, regardless 31
of whether police believe the suspect is committing or has committed a crime. The government
justified this “pre-emptive power of arrest” by stating that the delay in collecting sufficient
information for an arrest warrant would, in some cases, be too late to prevent the terrorist act.
There are no federal statutory provisions in the United States comparable to the British authority
to arrest suspected terrorists. Under the Fourth Amendment, the hallmarks of a reasonable arrest 32
are probable cause and a warrant issued by a neutral magistrate. The Amendment does allow 33
warrantless arrests based on probable cause under some circumstances and permits brief 3435
investigative stops and border inspections without a warrant and less than probable cause, but 36
there is nothing the equivalent of a “pre-emptive power of arrest.”
The government in the UK has faced the difficult task of balancing the rights of individuals, 37
which now have extensive statutory protection under the Human Rights Act 1998, with the
security of the state. The incorporation of the European Convention on Human Rights [the 38
ECHR] into the domestic law of the UK by the Human Rights Act 1998 altered the legal climate
of the UK and resulted in the specific prohibition of detention for the sole purpose of preventing a 39
crime being specifically prohibited, save in certain circumstances prescribed by law. While the
ECHR is not a new doctrine of law, but merely sets out the rights that individuals in Britain have 40
long enjoyed under the common law, the impact of the ECHR on the domestic laws of the UK is
evident. Cases challenging British laws are noticeable and ever increasing in number.
31 Terrorism Act 2000, c.11, §§ 41-43.
32 Katz v. United States, 389 U.S. 347, 357 (1967).
33 United States v. Pringle, 540 U.S. 366, 370 (2003).
34 United States v. Arvizu, 534 U.S. 266, 273 (2002).
35 United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004).
36 Kaupp v. Texas, 538 U.S. 626, 630 (2003) (“[W]e have never ‘sustained against Fourth Amendment challenge the
involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes
absent probable cause or judicial authorization’”)(quoting Hayes v. Florida, 470 U.S. 811, 815 (1985)).
37 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4,
1950, 213 UNTS 222.
38 Human Rights Act 1998, c. 42.
39 Currently, two situations to which the prohibition does not apply are the detention for treatment and assessment of
individuals with diagnosed mental health disorders when they are believed to be a danger to themselves or the safety of
others; and detention that is disproportionate to the offense for people convicted of crimes, when it is believed that such
individuals are a threat to society.
40 A v Secretary of State for the Home Department,  UKHL 56 ¶ 88.
The UK has had lengthy experience in indefinitely detaining those suspected to be terrorists 41
without trial in Northern Ireland. Under the Prevention of Terrorism (Temporary Provisions) Act 42
1984 (PTA), the Secretary of State could authorize the detention of a person for up to seven
days. In 1988 the European Court of Human Rights ruled that this was a breach of article 5(3) of
the ECHR unless it was judicially authorized, resulting in the government derogating from that 43
article in order to lawfully retain this provision of the PTA. The use of these powers was
controversial and in response to increasing violence. The result of the internment of almost 2,000
predominantly Catholic men was greater civil disturbances and a “diminished respect for the rule 44
of law in Northern Ireland.” It was widely reported that the use of internment was “among the 45
best recruiting tools the IRA ever had.”
It was against this background and experience that the government had to decide the most
effective, least controversial, and least likely to succumb to legal challenges in which to address
individuals whom the government suspects to be international terrorists or threats to national
security, but whom it cannot deport. This issue was tackled during the drafting of the TA, when
alternative options to derogation from the ECHR were considered. It was finally decided that 46
individuals could be detained for up to forty-eight hours after arrest without charge. Critics of
the TA regarded this provision as providing for “incommunicado detention” and unnecessary
because previously individuals detained under similar provisions were rarely charged with a 47
terrorist offense. Despite this criticism the period of detention permitted under the TA has been
extended by successive acts—from forty-eight hours to fourteen days by the Criminal Justice Act
Terrorism Act 2006.
The detention under this provision, for an initial period of forty-eight hours, is then reviewed by a
judicial authority and is then renewable for seven day periods up to a maximum of twenty-eight 49
days, with a senior judge considering applications for detainment for the final fourteen days. In
order to continue the period of detention the judicial authority must be satisfied that it is
necessary either to obtain or preserve relevant evidence or permit completion of an examination
or analysis of any relevant matter with a view to obtaining evidence. The investigation connected
with the detention must also be conducted diligently and expeditiously.
Other areas of controversy under the detention powers are that police superintendents can impose
a delay on the detained person without notifying others of the person’s detention or allowing them
41 Prevention of Terrorism (Temporary Provisions) Act 1984, c. 8.
43 Brogan and others v the UK, (1989) 11 EHRR 117.
44 Mary O’Rawe, Ethnic Profiling, Policing, and Suspect Communities: Lessons from Northern Ireland, 2005, Open
Society Justice Initiative, at 92, available at http://www.justiceinitiative.org/ db/resource2/fs/?file_id=15799.
45 Former IRA Commander Jim McVeigh, quoted in M. O’Connor and C. Rumann, Into the Fire: How to Avoid
Getting Burned by the Same Mistakes Made Fighting Terrorism in Northern Ireland, 24 CARDOZO LAW REVIEW 1657,
46 Terrorism Act 2000, § 41.
47 Former IRA Commander Jim McVeigh, supra footnote 45.
48 The government initially wanted to extend the period of detention to a total period of ninety days in the Terrorism
Act, but to ensure the bill passed through Parliament, the government reduced this to twenty eight days and inserted a
sunset clause that this provision is to expire one year after its enactment.
49 Terrorism Act 2000, § 41 and sch. 8, as amended by the Terrorism Act 2006, § 24.
to consult with a solicitor if there are reasonable grounds to believe that it would interfere with 50
In the United States, authorities must advise an individual in custody of his right to have attorney 51
present during interrogation and to have one appointed if he is unable to afford one. A person in
custody may waive his right to the presence of counsel, but questioning must stop if the 52
individual asks to speak to an attorney before continuing.
As to the detention of suspected terrorists, American law affords no counterpart, but the operation
of the material witness statute may have the same effect in some instances. Federal law permits
authorities to arrest a suspected terrorist with or without a warrant if they have probable cause to 53
believe that he has committed a federal felony. It also permits the issuance of an arrest warrant
if there is probable cause to believe that a person is a material witness to a federal offense and
will not be available when needed to testify either before the grand jury, at a trial, or in any other 54
criminal proceeding. Although an individual’s proximity to a crime may make him both a
legitimate witness and a legitimate suspect, the courts have said that a material witness warrant 55
may not be used as a substitute for a criminal arrest warrant.
Those arrested under federal authority must be taken before a magistrate “without unreasonable 56
delay.” A delay of longer than 48 hours of an individual arrested without a warrant is 57
presumptively unreasonable as a matter of constitutional law, and a delay of a period as short as
two hours may be considered unreasonable if the delay is attributable to criminal investigation 58
rather than processing of an arrestee.
Both those arrested on criminal charges and those arrested as material witnesses are eligible for 59
release under federal bail laws. Under the bail laws an individual arrested will either be:
released on personal recognizance; released subject to certain conditions including the execution
of a bail bond; temporarily detained pending parole revocation, deportation or exclusion; or 60
detained pending trial. An individual charged with one or more of the terrorist offenses listed in
18 U.S.C. 2332b(g)(5)(B) and punishable by a maximum term of imprisonment of 10 years or
more may be held for a hearing to determine whether any combination of conditions will be 61
sufficient to assure public safety and his appearance at later proceedings. In such cases, there is
a rebuttable presumption that no combination of conditions will reasonably assure public safety 62
or the later appearance of an individual arrested for various terrorist offenses. Although the
50 Terrorism Act 2000, sch. 8 ¶ 8.
51 Miranda v. Arizona, 384 U.S. 436, 479 (1966); Dickerson v. United States, 530 U.S. 428, 435-38 (2000).
52 Davis v. United States, 512 U.S. 452, 458 (1994).
53 U.S.Const. Amend. IV; F.R.Crim.P. 41; Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
54 18 U.S.C. 3144; United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003); United States v. Oliver, 683 F.2d 224,
231 (7th Cir. 1982).
55 United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003); In re DeJesus Berrios, 706 F.2d 355, 358 (1st Cir. 1983)
56 F.R.Crim.P. 5.
57 County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991).
58 United States v. Rivera, 370 F.3d 730, 734 (8th Cir. 2004).
59 18 U.S.C. 3142.
60 18 U.S.C. 3142(a).
61 18 U.S.C. 3144(e),(f),(g).
62 18 U.S.C. 3142(e).
terrorist presumption only applies to those charged with terrorist offenses, material witnesses may
nonetheless be detained if the court determines no combination of conditions will assure public 63
safety and the later appearance of the witness.
Various approaches to solve the problem of balancing the human rights of the individuals with the
need to protect the public and national security were investigated. After acknowledging the limits 64
of the laws in which it could act, the government considered various options to replace the
preventive detention scheme, including permitting the entry in court of intercepted or wiretapped 65
evidence or entering into Memorandums of Understanding between the UK and certain
governments to ensure that, if the detainees were deported to their home countries, they would 66
not be subject to the death penalty or torture upon their arrival. The government ultimately
decided that certain aspects of the preventive detention scheme could be achieved through control
orders that would apply to both foreign and British nationals and be supplemented by Memoranda
of Understanding with monitoring bodies, ensuring these countries compliance with the terms of
these agreements. In arriving at this decision, the Secretary of State reasoned that:
There are cases in which we remain unable to prosecute. However, that does not mean that
we should do nothing to forestall suspected terrorists or to prevent them from planning,
assisting or otherwise supporting those willing to carry out attacks. The Government have
therefore decided to replace the part 4 powers [of the ATCSA] with a new system of control
orders. We intend that such orders be capable of general application to any suspected
terrorist irrespective of nationality or, for most controls, of the nature of the terrorist activity
[whether international or domestic] and that they should enable us to impose conditions
constraining the ability of those subject to the orders to engage in terrorist-related activities.
Control orders would be used only in serious cases. The controls imposed would be
proportionate to the threat that each individual posed. Such orders would be preventive and
designed to disrupt those seeking to carry out attacks [whether here or elsewhere] or who are
planning or otherwise supporting such activities. They would be designed to address directly 67
two of the Law Lords’ concerns: discrimination and proportionality.
Control Orders were implemented through the Prevention of Terrorism Act 2005, with the aim of
protecting the public from the risk of terrorism by preventing individuals named in such orders
from becoming involved in, or assisting, a terrorism-related activity when prosecution of the 68
individual for that activity, or a criminal offense is not possible. The orders are preventive in
nature and designed to disrupt the activity of individuals where intelligence shows them to be a
63 United States v. Awadallah, 349 F.3d 42, 62-3 (2d Cir. 2003).
64 430 PARL. DEB., H.C. (5th ser.) (2005) 307 available at http://www.publications.parliament.uk/pa/cm200405/
cmhansrd/cm050126/debtext/50126-04.htm#50126-04 spmin0 (last visited Mar. 7, 2005). See also Lord Carlile of
Berriew, Anti-terrorism, Crime and Security Act 2001 Part IV Section 28 Review 2004, ¶ 11 available at
http://www.homeoffice.gov.uk/docs4/Part_IV_Feb_05.pdf (last visited Mar. 7, 2005).
66 430 PARL. DEB., H.C. (5th ser.) (2005) 307. The government focused its attention on obtaining Memoranda of
Understanding with key Middle Eastern and North African countries. See also UK Plan to Deport Terror Suspects,
BBC NEWS, Jan. 19, 2005, available at http://news.bbc.co.uk/1/hi/uk/4186457.stm (last visited Feb. 16, 2005).
67 430 PARL. DEB., H.C. (5th ser.) (2005) 307.
68 Prevention of Terrorism Act 2005, c. 2.
threat by imposing “obligations on individuals suspected of being involved in terrorism-related 69
activity [whether domestic or international] ... [to] restrict or prevent the further involvement by 70
individuals in such activity.”
The 2005 Act provides for two types of orders: those that do not derogate from the UK’s
obligations under the ECHR [hereinafter “non-derogating orders”] and those that do derogate
from the ECHR through imposing obligations that are incompatible with an individuals right to 71
liberty [hereinafter “derogating orders”].
To create the most restrictive form of order, which requires derogation from the UK’s obligations
under the ECHR, the Secretary of State must file an application with the High Court. Upon
receipt of the application, the High Court must hold a preliminary hearing, which may occur
without notifying the named individual or allowing him to make representations before the court, 72
to determine whether there is a prima facie case to grant the order. The court has authority to
grant an order at this stage if a number of criteria are met, including that there is material present
that can be relied upon to establish the individual is or has been involved in terrorism related
activity and it is reasonable to impose obligations on the individual to protect the public from the 73
risk of terrorism. If the court makes the derogating order in preliminary hearing, it is then
required to hold a full inter partes hearing to either confirm, revoke or modify the obligations of
the order. These orders can be made for up to twelve months at a time, and remade after that time
period by the Secretary of State, provided the derogation from the ECHR continues.
The orders are tailored to the particular risk imposed by each individual upon the advice of the
Security Service and can be modified to adjust to the changing risks that the individual might
pose and subject suspected terrorists to conditions similar to bail or probation, such as electronic
tagging, curfews, restrictions on communications or the use of certain facilities such as the 74
Internet, and from associating with other individuals. The obligations that can be imposed in the
orders are not restricted solely to the activities that caused the original suspicion that the person
was or had been involved in terrorism-related activity, but can be any obligation aimed to prevent 75
involvement in any terrorism-related activity. There are many instances in which the courts hear 76
cases without the presence of the individual named in the order, or his legal representative. If
the individual subject to an order contravenes any obligations imposed by the order, he can be
69 Section 1(9) of the Prevention of Terrorism Act 2005, c. 2 defines terrorism-related activities as “one or more of the
following: (a) the commission, preparation or instigation of acts of terrorism; (b) conduct which facilitates [or gives
encouragement to] the commission, preparation or instigation of such acts, or which is intended to do so; (d) conduct
which gives support or assistance to individuals who are known or believed to be involved in terrorism-related
70 Prevention of Terrorism Act 2005, c. 2, Explanatory Notes ¶ 3.
71 Id., § 1(2).
72 Id., c. 2, § 4.
73 Id., c. 2, § 4. The additional criteria are that “the risk arises out of, or is associated with, a public emergency in
respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights
Convention; and the obligations that there are reasonable grounds for believing should be imposed on the individual are
or include derogating obligations of a description set out in the designation order.”
74 Prevention of Terrorism Act 2005, c. 2, § 1(4).
75 Prevention of Terrorism Act 2005, c. 2, § 2(9).
76 The 2005 Act provides that Special Advocates, who are not responsible to the parties of the case, may be appointed
to represent the interests of the individual named in the order. Prevention of Terrorism Act 2005, c. 2, sch. 1 ¶ 7.
arrested without a warrant and, if found guilty of an offense, may be imprisoned for a period of 77
up to five years and/or fined upon conviction on indictment.
The introduction of Control Orders was inevitably subject to considerable criticism, notably that
it was the biggest threat to the civil liberty of British citizens and extension of the state’s
executive powers in over 300 years because, in certain circumstances, a citizen may be deprived 78
of their liberty without knowledge of the evidence presented against them. Individuals criticized
the structure of the British legal system, and questioned why the government did not remove the
legal constraints that prevent the prosecution of individuals for existing criminal and terrorist
offenses in the courts in the first instance, such as restrictions on the use of intercept evidence in
The Labour government responded to these suggestions by stating that an extensive review had
concluded that the use of intercepted evidence would only produce a “modest” increase in the
number of prosecutions for serious criminal offenses but none for terrorists and argued that:
There is a widespread misconception that if we could only adduce intercept as evidence, we
would be able to prosecute those detained. However, the review of intercept as evidence
found no evidence to support this ... [the] Government do not intend to change the existing
arrangements. Intercept provides only part of the intelligence against individuals ... it does
not stand alone. Some of the material that we have in these cases is inadmissible, and other
material, while technically admissible, could not be adduced without compromising national
security, damaging relationships with foreign powers or intelligence agencies, or putting the 79
lives of sources at risk.
Due to the highly political and sensitive nature of the subject matter of the 2005 Act, as well as
the circumstances in which the bill was pushed through Parliament, a sunset clause was inserted
that the provisions within the 2005 Act governing control orders will expire twelve months after
the bill was passed. The Secretary of State may, after consulting with the person appointed to
review the Act, the Intelligence Services Commissioner and the Director-General or the Security
Service, lay an order before Parliament that must be approved by a resolution of each House of 80
Parliament to revive the Act for an additional period of 12 months.
To ensure that the 2005 Act is not subject to abuse, nor contravenes individual human rights
without check, the Secretary of State is required to prepare a report every three months
concerning his use of control orders and appoint an individual to review the operation of the Act.
The report is also to cover the implications on the Act of any proposals put forth by the Secretary
of State for any law relating to terrorism, as well as the extent of the Secretary of State’s use of 81
non-derogating control orders in urgent cases without the permission of the court.
The system of Control Orders has already been subject to an adverse ruling by the High Court, 82
with the judge stating that the orders are “an affront to justice” and “conspicuously unfair.” The
77 Prevention of Terrorism Act 2005, c. 2, § 9.
78 Terror Law Row Explained, BBC NEWS, Mar. 12, 2005 available at http://news.bbc.co.uk/1/hi/uk_politics/
79 430 PARL. DEB., H.C. (5th ser.) (2005) 307.
80 Prevention of Terrorism Act 2005, c. 2, § 13.
81 Id. § 14.
82 Secretary of State for the Home Department v MB,  WLR (D) 104 (QB).
government is appealing this decision and has stated “the ruling will not limit the operation of the
act ... [and] we will not be revoking either the control order which was the subject of this review,
nor any of the other control orders currently in force on the back of this judgement ... Nor will the
judgment prevent the secretary of state from making control orders on suspected terrorists where 83
he considers it necessary to do so in the interests of national security in future.” As of May 2006 84
there have been twenty one control orders issued, and twelve remain in force.
The government continues to face the unenviable and difficult task of balancing the rights of
individuals and maintaining democracy whilst protecting it. Inevitably, any legislation aimed at
preventing individuals from engaging in a terrorist act rather than punishing individuals for
committing such an act will be subject to considerable criticism. It is not within the realm of
“traditional justice” to punish an individual for an act not yet committed overtly. The government
has maintained that the threat it is facing is not a traditional threat, and its use of preventive
measures is necessary to maintain order and national security from an amorphous threat. The
London Times has criticized the UK’s use of these provisions by drawing a parallel with:
Totalitarian states [that] have traditionally resorted to house detention as a way to silence
dissent without the bad publicity of criminal proceedings, so creating a form of extralegal
limbo that indicates guilt on the part of a suspect without having to go to the trouble of
obtaining a conviction ... Charles Clarke has argued that house arrest is preferable to 85
detention in Belmarsh, but that is only a difference of circumstance, not of essence.
The Home Secretary has continued to reiterate the paradoxical challenge that the current situation
creates and has stated that he is striving to:
Protect national security and ensure the safety and security of this country. In doing so, I
need to consider how we balance the rights of individuals against those of society; how we
ensure safety and security within a democracy without undermining the values that are at the 86
very heart of it.
The United States does not appear to recognize a procedure comparable to the UK’s control
orders. The procedure is reminiscent of the conditions that may be imposed either under federal 8788
bail laws or the laws governing federal probation. Control orders, however, are available when
there is insufficient evidence upon which to base a prosecution, while bail is predicated upon
arrest based on a determination that there is probable cause to believe that the person has 8990
committed a crime and probation is predicated upon conviction.
83 Vikram Dodd and Carlene Bailey, Terror Law an Affront to Justice-Judge: Control Orders Breach Human Rights,
GUARDIAN (London) Apr. 18, 2006, available at http://www.guardian.co.uk/humanrights/story/0,,1752864,00.html.
84 More Scrutiny of Control Orders, BBC NEWS, May 2, 2006, available at http://news.bbc.co.uk/2/hi/uk_news/
85 Ben MacIntyre, Guilty Until Proven Guiltier, TIMES (London), Jan. 29, 2005 available at
86 430 PARL. DEB., H.C. (5th ser.) (2005) 679.
87 18 U.S.C. 3142-3144.
88 18 U.S.C. 3561-3566.
89 F.R.Crim.P 4, 5.
90 18 U.S.C. 3561.
Law enforcement and the Security Services in the UK have a broad variety of methods at their
disposal to investigate crimes. These methods include the interception of communications,
electronic data, and various forms of surveillance. The use of these methods are subject to a
lengthy and complex legislative regime contained in the Regulation of Investigatory Powers Act 919293
2000 (RIPA), the Police Act 1997, and the Intelligence Services Act 1994; and supplemented
by the protections in the European Convention on Human Rights. Additional provisions are
supplied in the Covert Surveillance Code of Practice and the Interception of Communications 94
Code of Practice, which the Secretary of State is required to publish under the RIPA.
The RIPA regulates most forms of surveillance and the interception of communications in the
UK. It was enacted to update the laws on the interception of communications and brings them
into line with technological advances. The RIPA was also enacted in anticipation of the effects of
the Human Rights Act 1998, which granted individuals an enforceable right to family life and
privacy and in response to a number of adverse rulings from the European Court of Human
Rights. The European Court of Human Rights found that the lack of regulation of surveillance
activities was in breach of article 8 of the European Convention on Human Rights (ECHR),
because the interference with the complainants’ right to private life had not occurred with a 95
procedure prescribed by law. Despite concerns over the lack of judicial involvement during the
drafting of these laws, the issuance of warrants in the UK remains an executive act; with the
government previously “explicitly reject[ing] the suggestion that the issue of a warrant should be 96
a judicial act.”
In the United States, law enforcement and intelligence agencies enjoy broad authority to
investigate individuals and activities. That authority, however, is limited by court rule, and by
statutory and constitutional safeguards designed to prevent unwarranted intrusions and abuse. The 97
authority includes the power to conduct searches and seizures; to intercept wire, oral and 98
electronic communications; to demand access to stored communications and communications 99100
records; to install and use pen registers and trap and trace devices; and to issue administrative 101
subpoenas including those in the form of “national security letters.” While law enforcement
91 Regulation of Investigatory Powers Act 2000, c. 23.
92 Police Act 1997, c.50.
93 Intelligence Services Act 1994, c. 13.
94 Regulation of Investigatory Powers Act 2000, c. 23, § 71; Regulation of Investigatory Powers (Interception of
Communications: Code of Practice) Order 2002, SI 2002/1693; and the Regulation of Investigatory Powers (Covert
Surveillance: Code of Practice) Order 2002, SI 2002/1933.
95 Khan v the UK  6 EHLR 6555; Malone v the UK  7 EHRR 14. See also RICHARD POWELL, AN
INTRODUCTION TO THE RIPA 2000, Part I, Mags. C.P. 5.1(9) (2001).
96 Regulation of Investigatory Powers Act 2000, c. 23, § 5.
97 U.S. Const. Amend. IV; F.R.Crim.P. 41; 18 U.S.C. 3103a; 50 U.S.C. 1821-1829.
98 18 U.S.C. 2510-2520; 50 U.S.C. 1801-1811.
99 18 U.S.C. 2701-2712.
100 18 U.S.C. 3121-3127; 50 U.S.C. 1841-1846.
101 18 U.S.C. 3486; 21 U.S.C. 876; 18 U.S.C. 2709; 15 U.S.C. 1681u; 15 U.S.C. 1681v; 12 U.S.C. 3414; 50 U.S.C.
436. Federal grand juries enjoy particularly sweeping investigative authority; grand juries have been abolished in the
UK; see generally, CRS Report 95-1135, The Federal Grand Jury, by Charles Doyle.
and intelligence investigators may work cooperatively, neither Foreign Intelligence Surveillance
Act’s (FISA) interception nor its physical search authority may be invoked solely for the purpose 102
of a criminal investigation unrelated to a foreign intelligence offense.
The UK’s RIPA provides a system of authorizations for three different types of surveillance: 103
directed, intrusive, and covert human surveillance. All these forms of surveillance involve an
aspect of covertness, defined in the RIPA as when the surveillance is “carried out in a manner that
is calculated to ensure that persons who are subject to the surveillance are unaware that it is or 104
may be taking place.” Intrusive surveillance is defined in the RIPA as covert surveillance that is
conducted either by a device or a person, in relation to events occurring inside private property or
private vehicles and is the type of surveillance subject to the most stringent controls under the 105
RIPA. Covert human intelligence occurs when a source establishes or maintains any form of
relationship with a person to obtain or access information or to disclose such information 106
covertly, when the subject of surveillance is unaware it is occurring. Directed surveillance
occurs when the surveillance is covert, but not intrusive, and undertaken for a specific 107
investigation or operation to obtain private information about a person. Specifically, such
surveillance involves monitoring a person’s “movements, habits or activities by various means in
order to obtain specific information about an individual or build a profile of their character or 108
lifestyle” without entering onto the person’s property.
The RIPA does not impose a requirement that public authorities obtain an authorization under its 109
provisions when they wishes to conduct surveillance. However, the Code of Practice on Covert 110
Surveillance points to the obligations that the state has under the European Convention on
Human Rights to respect family and private life, strongly recommending that an authorization be
obtained. The Code notes that where there is “no other source of lawful authority, the
consequence of not obtaining an authorization under the RIPA may be that the action is unlawful 111
by virtue of the Human Rights Act.”
Due to the unique and involved nature of directed and covert human surveillance, specific
requirements must be met before an authorization will be granted. For covert human surveillance,
the requirements aim to ensure the source’s security and welfare, as well as to provide
independent oversight; that proper records are kept on the sources; and that the identity of the
102 50 U.S.C. 1806(k), 1825(k), 1804(a)(7)(B), 1823(a)(7)(B); In re Sealed Case, 310 F.3d 717, 735-36 (F.I.S.Ct. Rev.
103 Regulation of Investigatory Powers Act 2000, c. 23, § 6.
104 Id., c. 23, § 26(9)(a).
105 Id., c. 23, § 26.
106 Id., c. 23, § 26(7).
107 Id., c. 23, § 26(2) and Standing Committee F, Mar. 30, 2000, ¶ 274.
108 Investigatory Powers Tribunal, Directed Surveillance, Jan., 2005, available at http://www.ipt-uk.com/
109 Regulation of Investigatory Powers Act 2000, c. 23, § 80.
110 The Code of Practice on Covert Surveillance, Pursuant to § 71 of the Regulation of Investigatory Powers Act 2000.
111 Id. at ¶ 2.2.
source is only disclosed on a “need to know” basis.112 A person designated under the RIPA, which
encompasses a broad variety of persons from senior members of the security services to officials 113
from local authorities, can authorize directed and covert human surveillance if he believe that it
is proportionate and necessary:
• in the interests of national security;
• for the purpose of preventing or detecting crime or preventing disorder;
• in the interests of the economic well-being of the UK;
• in the interest of public safety;
• for the purpose of protecting public health;
• to collect impositions, contributions or charges payable to a government
• for any purpose as specified in an order made by the Secretary of State laid 114
before Parliament and approved by a resolution in each House.
Warrants for covert human surveillance continue for an initial period of twelve months, and three 115
months for authorizations for directed surveillance.
As noted above, there is no requirement for public authorities to obtain an authorization under the
RIPA prior to conducting surveillance activities. The Home Office has issued non-statutory
guidelines that provide only Chief Constables or Assistant Chief Constables are entitled to 116
authorize the use of certain equipment in police surveillance operations. The Guidelines
provide that authorizations should only occur when all of the following criteria are met:
• the investigation concerns serious crime;
• normal methods of investigation must have been tried and failed, or must from
the nature of things, be unlikely to succeed if tried;
• there is good reason to think that the use of the equipment is likely to lead to an
arrest and a conviction, or where appropriate, to the prevention of acts of
• the use of equipment is operationally feasible; and
112 Regulation of Investigatory Powers Act 2000, c. 23, § 29(5).
113 The list of persons with authority to issue a warrant for directed and covert human surveillance is extensive and
contained in the Regulation of Investigatory Powers Act 2000, c. 23, §§ 28-30 and the Prescription of Offices, Ranks
and Provisions Order 2000, SI 2000/2417. Local authorities and certain other authorities may now use only the powers
for covert human surveillance to prevent or detect crime or disorder. Many authorities claim that this restriction has
rendered the powers obsolete because they can no longer authorize covert activities in areas that are within their remit.
Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order, S.I.
2003/3171. See also OFFICE OF SURVEILLANCE COMMISSIONERS, ANNUAL REPORT, 2005-6, H.C. 1298.
114 Regulation of Investigatory Powers Act 2000, c. 23, §§ 28-29.
115 Id., c. 23, § 43.
116 Home Office, Guidelines of 1984, referred to in Perry v the UK  Crim LR 281, ¶¶ 23-4.
• the degree of intrusion into the privacy of those affected by the surveillance is 117
commensurate with the seriousness of the offense.
The use of video surveillance by public authorities in public places has been subject to
considerable debate amongst privacy scholars who consider that the installation of the extensive
closed circuit television cameras (CCTV) in public places across the UK has eroded individual 118
privacy and is leading to a ‘big brother’ state. There are currently no statutory regulations on
the use of CCTV cameras, although the Home Office has produced a Code of Practice on their 119
The use of CCTV, and the images they record is subject to Article 8 of the ECHR.120 The
European Court of Human Rights has noted that the “recording of the data and the systematic or
permanent nature of the record may give rise to [privacy] considerations ... [and] the compilation
of data by security services on particular individuals even without the use of covert surveillance 121
methods constitutes an interference with the applicants’ private lives.” When determining
whether video surveillance has breached Article 8, the courts consider whether the complaining
individual had a ‘reasonable expectation of privacy’ as an indicating factor whether the
surveillance breached their human rights; for example, did the actions occur in a public place or
was the information processed at a level high enough to constitute interference with the
individual’s private life or the material published in a manner greater than could be reasonably 122
foreseen. The courts have noted that even though certain acts may occur in public, there is a 123
“zone of interaction ... in a public context, which may fall within the scope of ‘private life.’”
U.S. law treats covert human surveillance (confidential informants), directed surveillance
(consensual interception of communications and lawful unplanned surveillance), and video
surveillance a bit differently: no special authorization is statutorily or constitutionally required
under most circumstances. The interception of wire, oral or electronic communications with the
consent of one party to the communication constitutes one of the exceptions to the general 124
statutory and constitutional prohibitions against warrantless interceptions. There is no statutory
restriction on government surveillance within a public place. The limitations of Fourth
Amendment’s proscription on unreasonable searches and seizures only come into play when there
is a justifiable expectation of privacy associated with government’s surveillance in the form of a 125
visual or photographic seizure in a public place. The First Amendment’s restrictions on
governmental actions which have a prohibited chilling effect on the exercise of First Amendment
rights are not offended when the government’s information gathering “is nothing more than a
117 In Perry v the UK  Crim LR 281, ¶¶ 24 (referring to Home Office, Guidelines of 1984).
118 See for example PRIVACY INTERNATIONAL available at http://www.privacyinternational.org (last visited Sept. 7,
119 Home Office, Guidelines of 1984, referred to in Perry v the UK  Crim LR 281, ¶¶ 23-4.
120 The information collected by CCTV cameras is typically subject to the provisions of the Data Protection Act 1998
and must, therefore, be processed in compliance with this Act.
121 Perry v the UK  Crim LR 281, ¶ 38 (referring to Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR
2000-V, and Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II).
122 Peck v the UK (no. 44647/98), judgment of 28 January 2003, ECHR 2003 and P.G. and J.H. v the UK, no.
44787/98, § 56, ECHR 2001-IX.
123 P.G. and J.H. v the UK, no. 44787/98, § 56, ECHR 2001-IX.
124 18 U.S.C. 2511(2)(c),(d); United States v. White, 401 U.S. 745 (1971).
125 United States v. Katz, 389 U.S. 347, 361 (1967); United States v. Jackson, 213 F.3d 1269, 1280-281 (10th Cir. 2000).
good newspaper reporter would be able to gather by attendance at public meetings and the 126
clipping of articles from publications available on any newsstand.”
Due to its inherent invasiveness, the Home Office claims that this form of surveillance is only
used to “catch offenders suspected of serious crimes.” Authorizations for intrusive surveillance 127
can only be granted by the Secretary of State or senior officials designated under the RIPA. The
list of individuals under this provision is narrower than those designated to authorize covert or
directed surveillance and includes chief constables of the police forces; designated members of
the Security Service; the Provost Marshall of the Royal Air Force Police; designated customs 128
officers; and more recently, officers of the Northern Ireland Prison Service.
The circumstances under which this form of surveillance can be authorized are necessarily
narrower than the other types of surveillance. A warrant can be authorized if the authorizing
official believes the surveillance is:
• proportionate to what it is seeking to achieve; and
• necessary in the interests of national security and for the purpose of preventing or
detecting serious crime or in the interests of the economic well being of the UK;
• the information cannot reasonably be obtained by other means.129
The Secretary of State may also authorize intrusive surveillance upon application from a member
of any of the security services; an official of the Ministry of Defence; a member of Her Majesty’s
Forces; or an individual holding a position within a public authority that has been designated
under the RIPA. The Secretary of State must believe that the surveillance is necessary in the 130
interests of national security and for the purposes of preventing or detecting serious crime. The
Secret Intelligence Service and GCHQ can also obtain a warrant under these provisions for
directed and intrusive surveillance relating to property in the British Isles, provided that the
investigation is carried out in the interests of national security or the economic well-being of the
UK. The Security Service may act on behalf of Secret Intelligence Service and GCHQ to obtain
an authorization for a warrant in connection with a function of one of the above services provided 131
that the activity does relate to the support of the prevention or detection of serious crime. These 132
authorizations are effective for renewable periods of six months.
As a matter of U.S. law, intrusive surveillance (the surreptitious capture of activities in a private
place or vehicle by person or device) is likely to implicate the Fourth Amendment unless the 133
search or seizure involves the property of one who has no justifiable expectation of privacy.
126 Laird v. Tatum, 408 U.S. 1, 9 (1972).
127 Regulation of Investigatory Powers Act 2000, c. 23, § 32.
128 Id., c. 23, § 32; and the Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003, SI 2003/3174.
129 Regulation of Investigatory Powers Act 2000, c. 23, § 32.
130 Id., c. 23, § 41.
132 Regulation of Investigatory Powers Act 2000, c. 23, § 44.
133 California v. Ciraolo, 476 U.S. 207, 213 (1986); Minnesota v. Carter, 525 U.S. 83, 88-91 (1998); United States v.
Thus for example, without a warrant the government may not use a thermal imager to monitor 134
activity within a home.
Applications for authorizations under RIPA by members of the police force, members of the
Serious Organised Crime Agency (SOCA, formerly the National Criminal Intelligence Service
(NCIS)), or a customs officer for directed or intrusive surveillance or the use of covert human
intelligence sources must also be approved by a surveillance commissioner. Written notice of this 135
authorization be provided to the person who granted the authorization.
Authorizations issued upon the application of members of the police force, the SOCA or customs
officers can be quashed by a Surveillance Commissioner if he is are satisfied that, “at the time the
authorization was granted or at any time when it was renewed,” there were no reasonable grounds 136
for believing that the statutory criteria were met. A Surveillance Commissioner can also cancel 137
authorizations if he believes that the statutory criteria are no longer met. If the Surveillance
Commissioner decides to quash the authorization, he has the authority to order that any records
relating to information obtained by the surveillance after the statutory requirements were no 138
longer met be destroyed. This does not apply if the records are needed for pending criminal or 139
Authorizing officers have a right of appeal to the Chief Surveillance Commissioner within seven
days of the decision by the Surveillance Commissioner to:
• refuse to approve an authorization for intrusive surveillance;
• quash or cancel an authorization for intrusive surveillance; or
• order the destruction of records.140
The Chief Surveillance Commissioner can modify, quash or affirm the Commissioner’s decision.
During 2005-2006 only one appeal was lodged, based on quashing of an authorization to use an
invisible marking dye to covertly mark the property of a suspect. The Commissioner quashed the
appeal on the basis that it was speculative whether the suspect would commit a serious offense
within the meaning of the law; his decision was in turn appealed; and that appeal subsequently 141
Corona-Chavez, 328 F.3d 974, 980 (8th Cir. 2003).
134 United States v. Kyllo, 533 U.S. 27, 40 (2001).
135 Regulation of Investigatory Powers Act 2000, c. 23, § 36. For further information about the surveillance
commissioner, see infra, under subheading “safeguards.”
136 Regulation of Investigatory Powers Act 2000, c. 23, § 37.
140 Regulation of Investigatory Powers Act 2000, c. 23, § 38.
141 OFFICE OF SURVEILLANCE COMMISSIONERS, ANNUAL REPORT, 2005-6, H.C. 1298.
There is no comparable American procedure. The procedure in the UK, however, serves the same
purposes of the U.S. requirement that warrants be issued by a neutral magistrate—a safeguard
against abuse of executive power.
The RIPA provides a system of authorizations in which communications can be intercepted.142 A
warrant is required for the lawful interception of communications in most circumstances in the 143
UK. Circumstances in which communications can be intercepted without a warrant include
those in which:
• one party to the communication has consented to the intercept;
• the provider of a postal or telecommunications service intercepts the
• a person conducting a business, government department, or public authority
intercepts communications on their entity’s own telecommunications lines to
prevent or detect crime, ascertain facts, investigate unauthorized use of the
system, and monitor communications to determine whether they are business or 144
• the intercepted communications are those in hospitals with high security
psychiatric services, under regulations made by the Secretary of State for
interceptions in the course of lawful business practice, under prison rules, or in
state hospitals in Scotland; or
• the interception of communication occurs on a public telecommunications system
outside the UK and the person providing the telecommunications service is 145
required by the law of that country to facilitate the interception.
In the United States, a court order is required for the lawful interception of communications in 146
most circumstances and can be obtained either under the Electronic Communications Act (Title 147148
III) or the Foreign Intelligence Surveillance Act (FISA). The circumstances in which
communications can be intercepted without an order under Title III include those in which:
142 Section 2 of the Regulation of Investigatory Powers Act 2000, c. 23 defines the interception of communications as
when, in the course of the communications transmission by a telecommunications system, a person modifies or
interferes with the system or its operation; monitors transmissions made by the telecommunications system; or
monitors transmissions by wireless telegraphy to or from apparatus contained in the telecommunications system,
resulting making some or all fo the contents of the communication available during the transmission to a person other
than the sender or the intended recipient of the communication.
143 Regulation of Investigatory Powers Act 2000, c. 23, § 1.
144 Regulation of Investigatory Powers Act 2000, c. 23, § 4 and The Telecommunications (Lawful Business Practice)
(Interception of Communications) Regulations 2000, SI 2699/2000.
145 Regulation of Investigatory Powers Act 2000, c. 23, §§ 1 and 4.
146 U.S.Const. Amend. IV; United States v. Katz, 389 U.S. 347 (1967); United States v. United States District Court,
407 U.S. 297 (1972); 18 U.S.C. 2511; 50 U.S.C. 1809.
147 18 U.S.C. 2510-2520 (originally enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968).
148 50 U.S.C. 1801-1811.
• one party to the communication has consented to the interception;149
• the service provider intercepts the communication incident to rendering service, 150
or in order to protect the provider’s property;
• the interception occurs through the use of telephone equipment used in the 151
ordinary course of the interceptor’s business;
• there is no justifiable expectation of privacy in the intercepted oral 152
• an emergency exists and approval of an application is anticipated;153 or
• the interception of communication occurs outside of the United States and in 154
compliance with the laws of the place where it occurs.
The circumstances in which communications can be intercepted without an order under FISA
include those in which:
• the President has approved interception for up to 15 days during a time war 155
declared by Congress;
• the President has approved interception for up to 1 year when the
communications are between foreign powers (not including terrorist groups) and 156
the communications of a U.S. person are not likely to be intercepted;
• an emergency exists and an application is anticipated;157
• there is no justifiable expectation of privacy in the intercepted oral 158
• the interception of communication occurs outside of the United States and in 159
compliance with the laws of the place where it occurs.
The UK authorization process to obtain a warrant to intercept communications differs from the 160
process to obtain surveillance warrants. Under the RIPA the Secretary of State personally issues
149 18 U.S.C. 2511(2)(c),(d); United States v. White, 401 U.S. 745 (1971).
150 18 U.S.C. 2511(2)(a)(I).
151 18 U.S.C. 2510(5)(a).
152 18 U.S.C. 2510(2).
153 18 U.S.C. 2518(7).
154 Neither Title III nor FISA applies to interceptions occurring outside of the United States, United States v.
Toscanino, 500 F.2d 267, 279 (2d Cir. 1974); United States v. Bin Laden, 126 F.Supp.2d 264, 272 (S.D.N.Y. 2000).
The Fourth Amendment does not apply where there is no justifiable expectation of privacy, Smith v. Maryland, 442
U.S. 735, 741-46 (1979). Nor does it apply to the overseas searches and seizures by United States agents of foreign
property, United States v. Verdugo-Urquidez, 494 U.S. 259 (1991). It does apply to the overseas searches and seizures,
attributable to agents of the United States, of the property of Americans exhibiting a justifiable expectation of privacy th
with respect to the property, United States v. Juda, 46 F.3d 961, 968 (9 Cir. 1995).
155 50 U.S.C. 1809.
156 50 U.S.C. 1802.
157 50 U.S.C. 1805(f).
158 50 U.S.C. 1801(f).
159 United States v. Bin Laden, 126 F.Supp.2d 264, 272 (S.D.N.Y. 2000).
warrants to intercept communications upon receipt of an application from the Director General of
any of the Intelligence Services, the SOCA, the Chief of Defence Intelligence, Police
Commissioners, Chief Constables of the Police Service in Northern Ireland, Chief Constables of
Scottish Police forces, the Commissioner of Customs and Excise, or a person that is the
competent authority of a country or territory outside the UK under a mutual assistance 161
agreement. Police Chief Constables in England and Wales may make applications for warrants
through the SOCA. With the exception of authorizations under international mutual assistance
agreements, these people all hold office under the Crown.
Except for warrants issued in response to requests under mutual assistance agreement, or in
urgent cases, the Secretary of State must personally sign the warrant. In urgent cases, a senior
official designated by the RIPA can sign a warrant, although the Secretary of State must still 162
personally authorize the warrant. In cases of warrants issued for mutual assistance agreements,
the senior official must be satisfied that the interception subject is outside the UK or the 163
interception is to occur in relation only to premises outside the UK.
In cases in which a warrant is required, to ensure that the right to privacy is not arbitrarily or
unduly interfered with, the issuing authority must believe that the interception is necessary on one
of the statutory grounds and is proportionate to the aim of the surveillance, as is required under
the European Convention on Human Rights. The Code of Practice describes the test of
proportionality as “balancing the intrusiveness of the interference, against the need for it in
operational terms ... it will not be proportionate if it is excessive in the circumstances of the case 164
or if the information which is sought could reasonably be obtained by other means.” This test
must be met in every case where an authorization for a warrant is requested.
The authorization process to obtain an order to intercept communications under either U.S.
federal statute differs from the process to obtain a traditional search warrant. Under Title III, a
United States District Court issues an order to intercept communications upon receipt of an 165
application approved by a senior Justice Department official. Under FISA, federal judges
designated to act as judges of the special Foreign Intelligence Surveillance Court issue orders to 166
intercept communications upon receipt of an application approved by the Attorney General. In
urgent cases, senior Justice Department officials may authorize emergency interception pending 167
court approval of Title III application. The Attorney General enjoys similar authority under 168
FISA. The interception orders must identify the location and nature of the facilities targeted for
160 2 CURRENT LAW STATUTES 2000 (Christine Beesley et al eds., 2000). See also INTERCEPTION OF COMMUNICATIONS
IN THE UK, 1999, Cm. 4368 at 20 and 613 PARL. DEB., (H.L.) (5th ser.) 1487.
161 Regulation of Investigatory Powers Act 2000, c. 23, § 6.
162 Home Office, Interception of Communications Code of Practice, ¶ 2.2.
163 Regulation of Investigatory Powers Act 2000, c. 23, § 7.
164 Home Office, Interception of Communications Code of Practice, ¶ 2.5.
165 18 U.S.C. 2516, 2518. Title III also authorizes state court judges to issue interception orders upon the application of
senior state law enforcement officials when empowered to do so under a state law whose requirements are at least as
demanding as those of Title III, 18 U.S.C. 2516.
166 50 U.S.C. 1803, 1804.
167 18 U.S.C. 2518(7).
168 50 U.S.C. 1805(f).
interception unless the efforts to thwart identification are anticipated or, in the case of intercepted 169
oral communications, circumstances render identification impractical.
Before the Secretary of State in the UK can authorize a warrant to intercept communications, he
must believe that the conduct requested by the warrant is proportionate and necessary on the
grounds of being:
• in the interests of national security;
• for the purposes of preventing or detecting serious crime;170
• for the purpose of safeguarding the economic well being of the UK from the acts
or intentions of individuals outside the British Isles; or
• to give effect to an international mutual assistance agreement whose purpose is 171
equivalent to that of preventing or detecting serious crime.
Before the U.S. court can authorize a Title III order to intercept communications, it must conclude
• there is probable cause to believe that an individual has committed, is
committing, or will commit one of the serious federal crimes with respect to 172
which an order may be authorized;
• there is probable cause to believe that communications relating to the crime will 173
be obtained through the interception;
• that alternative procedures have proved or are likely to prove futile or too 174
• unless thwarting efforts or impractical circumstances are anticipated, there is
probable cause to believe that the targeted facilities or location are being or will
be used in connection with commission of the offense, or are leased to or 175
commonly used by the targeted individual.
Before the court can authorize a FISA order to intercept communications, it must conclude that:
• the President has authorized the Attorney General to approve applications;176
• the Attorney General has approved the application submitted by a federal 177
169 18 U.S.C. 2518(11); 50 U.S.C. 1805.
170 Detecting crime is interpreted in section 81(5) of the RIPA as “establishing by whom, for what purpose, by what
means and generally in what circumstances any crime was committed; and the apprehension of the person by whom
any crime was committed.”
171 Regulation of Investigatory Powers Act 2000, c. 23, § 5.
172 18 U.S.C. 2518(3)(a).
173 18 U.S.C. 2518(3)(b).
174 18 U.S.C. 2518(3)(c).
175 18 U.S.C. 2518(3)(d).
176 50 U.S.C. 1805(a)(1).
177 50 U.S.C. 1805(a)(2).
• there is probable cause to believe that the target is a foreign power or agent of a
foreign power (foreign powers include international terrorist groups and agents of
foreign powers include international terrorists)(except that no U.S. person may be 178
considered based solely First Amendment protected activities);
• there is probable cause to believe that the targeted facilities or locations are or are 179
about to be used by a foreign power or agent of foreign power;
• adequate acquisition, retention and dissemination minimization procedures will 180
be followed; and
• application requirements have been met.181
The warrant in the UK can apply to either one person or one premises and continues for a period
of three months. For warrants issued on the grounds of the prevention and detection of serious
crime, this period can be renewed for an additional three months; warrants issued on the grounds
of national security or economic well being of the UK can be renewed for an additional six
months. Warrants issued in urgent circumstances by a senior official are valid for five working 182
days from the date of issue, and may be renewed by the Secretary of State. With the exception
of warrants issued in urgent cases, modifications to the warrant do not affect the expiry date. The
modification of warrants issued in urgent circumstances has the effect of restarting the five day 183
period for which the warrant is valid.
In the United States, Title III orders expire no later than 30 days after issuance, subject to 30 day 184
extensions. The tenure of FISA orders varies according to the character of the target, ranging 185
from 90 days to one year, with possible extensions of like duration.
There is no requirement under the RIPA that the subject of the interception be notified of its
occurrence after the fact, with the Home Secretary noting that:
Disclosure of the fact of an interception warrant to anyone being intercepted would
fundamentally undermine its effectiveness ... Secrecy enables law enforcement agencies and
the intelligence agencies to best ensure protection of the public in a wide range of cases.
However, the issue and execution of interception warrants is overseen by the independent 186
Interception of Communications Commissioner.
Upon expiration of the order in the United States, Title III of federal law requires notification of 187
individuals named in an interception order and anyone else the court finds appropriate. FISA
requires notification of an individual whose communications have been intercepted only when the
178 50 U.S.C. 1805(a)(3)(A), 1801(a), (b).
179 50 U.S.C. 1805(a)(3)(B).
180 50 U.S.C. 1805(a)(4).
181 50 U.S.C. 1805(a)(5).
182 Home Office, Interception of Communications, Code of Practice, ¶ 2.11.
183 Id., ¶ 2.12.
184 18 U.S.C. 2518(5).
185 50 U.S.C. 1805(e).
186 Home Office, Home Secretary Charles Clarke’s Letter to Simon Carr of the Independent, 2006, available at
187 18 U.S.C. 2518(8)(d).
government intends to enter the results of the interception into evidence in a judicial or 188
There are no specific prohibitions on intercepting material of a confidential nature, such as those
subject to legal privilege, confidential personal information, or confidential journalistic material.
The Code of Practice on the Interception of Communications details additional safeguards which
provide that extra consideration should be given when an interception might involve materials of
a confidential nature and that applications for surveillance that are likely to result in the
acquisition of legally privileged materials should only be made in exceptional and compelling 189
Neither U.S. statute, Title III nor FISA, contains a specific prohibition upon the interception of
privileged or otherwise confidential communications. Both state that privileged communications 190
do not lose their privileged status by virtue of interception.
A number of provisions in the RIPA aim to act as safeguards to ensure that any information
obtained is not abused or misused. Material intercepted under the above provisions is only to be
used, disclosed, and distributed as minimally as necessary for the purposes for which it was 191
authorized. In practice, this means that the information can be shared across, and used by, law
enforcement and intelligence agencies both in the UK and overseas through the cooperative
intelligence and information approach in the UK, which the Home Office claims has led to
“uniquely close cooperation between our law enforcement and intelligence agencies. No other 192
country in the world even gets close to this level of inter-agency co-operation.” The disclosure
of the information is limited to those who have the required security clearance; and the need to
know principle that requires “intercepted material must not be disclosed to any person unless that
person’s duties, which must relate to one of the authorized purposes, are such that he needs to 193
know about the material to carry out those duties.” Once the material is no longer needed for 194
the authorized purposes, it must be securely destroyed.
In the case of Title III interceptions in the United States, law enforcement officers may use
information obtained through an interception in the performance of any of their duties rather than 195
merely those associated with the investigation for which the interception was authorized.
Moreover the information may be shared with other law enforcement officers—and in the case of
188 50 U.S.C. 1806(c).
189 Home Office, Interception of Communications Code of Practice, ¶ 3.6.
190 18 U.S.C. 2517(4); 50 U.S.C. 1806(a).
191 Regulation of Investigatory Powers Act 2000, c. 23, § 15.
192 Home Office, Use of Communications Intercept as Evidence, available at http://security.homeoffice.gov.uk/
surveillance/interception/communications-intercept/ (last visited Sept. 1, 2006).
193 Home Office, Interception of Communications Code of Practice, ¶ 6.4.
194 Regulation of Investigatory Powers Act 2000, c. 23, § 15 and the Home Office, Interception of Communications
Code of Practice, ¶ 6.8.
195 18 U.S.C. 2517(2).
foreign intelligence information, with intelligence, protective, immigration, national defense and 196
national security officials officers—for use in their official duties.
Disclosure of information secured through a FISA interception is more circumspect, but
information that is not foreign intelligence information may be shared with law enforcement 197
officials for use in their official duties.
The UK’s RIPA also requires that the Prime Minister appoint an Intelligence Services
Commissioner to review how the Secretary of State issues warrants for surveillance and how the
Secretary of State exercises and performs the powers and duties granted by the RIPA in relation to 198
the Service. Information obtained under these procedures are also subject to the protections and
requirements of the Data Protection Act 1998.
There is no exact replica of the UK safeguard under U.S. law, but similar benefits may follow as a
consequence of the various required reports to the public and Congress on the use of the authority 199
under Title III and FISA.
The police, the Royal Navy Regulating Branch, the Royal Military Police and the Royal Air
Force Police, customs officers, and members of the SOCA have a separate series of legislation,
augmented by the RIPA, for entry or interference with property in relation to wireless telegraphy
contained in the Police Act 1997. This provides that a Chief Constable or other authority specified
in the Police Act 1997 may issue an authorization permitting “such action ... in respect of 200
[property or] wireless telegraphy” as the authorizing officer specifies and enables the
authorizing officers to require the maintenance or retrieval of equipment or devices whose uses or 201
placement has been authorized by the Police Act or the surveillance provisions of the RIPA.
The authorizing officer must believe that the action is necessary for the purposes of preventing or 202203
detecting serious crime; and cannot reasonably be achieved by other means. Authorizing
officers are Chief Constables of police force in England, Wales or Scotland; a Chief Constable or
Deputy Chief Constable of the Police Service of Northern Ireland; the Commissioner or Assistant
Commissioner of the Police of the Metropolis; the Commission of Police for the City of London;
the Chief Constable of the Ministry of Defence Policy; the Provost Marshall of the Royal Navy
Regulating Branch, the Royal Military Police, or the Royal Airforce Police; the Chief Constable
of the British Transport Police; the Director General of the SOCA; and any customs officer
196 18 U.S.C. 2517(1), (6).
197 50 U.S.C. 1806(a), 1801(h); In re Sealed Case, 310 F.3d 717, 728-34 (F.I.S.Ct.Rev. 2002).
198 Regulation of Investigatory Powers Act 2000, c. 23, § 59(1-2).
199 18 U.S.C. 2519; 50 U.S.C. 1807, 1808.
200 Police Act 1997, c. 50, § 93.
202 Section 93 of the Police Act 1997, c. 50 defines crime as serious when it “involves the use of violence, results in
substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose, or the offense or
one of the offenses is an offense for which a person who has attained the age of twenty-one and has had no previous
convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.”
203 Police Act 1997, c. 50, § 93.
designated by the Commissioners of Customs and Excise.204 Authorizations continue for an initial 205
period of three months and can be renewed for an additional period of three months.
The Police Act provides that matters subject to legal privilege, confidential information and
confidential journalistic information can be subject to an authorization that permits the police to 206
interfere with property or wireless telegraphy. Except in cases of urgency, the authorization to
interfere with property that is used as a dwelling or as office premises, or interceptions of
communications that are likely to result in the knowledge of material subject to legal, journalistic
or confidential personal privilege must have the written approval of a Surveillance 207
Commissioner. The Surveillance Commissioner may only approve the authorization if he
believes that there are reasonable grounds that the statutory grounds for authorizing a warrant 208
have been met.
Members of the public who believe their property or wireless telegraphy has been interfered with
by the police or other authorized bodies may file a complaint with the Investigatory Powers 209
Tribunal who may conduct an investigation on their behalf.
As noted earlier, Title III governs the interception of wire, oral and electronic communications in 210
the United States. It provides a procedure for court approved interceptions for law enforcement
purposes during the course of investigations of a list of specifically designated federal and state 211
crimes. Here too interception orders are good for no more than ninety days, but are subject to 212
ninety day extensions. Individuals named in an interception order and others the court 213
considers appropriate are notified following the expiration of the order.
The Intelligence Service Act 1994 (ISA) granted the Secretary of State additional powers to
authorize entry on and interference with property or with wireless telegraphy upon application 214
from any of the three Intelligence Services. The property that can be interfered with “covers all 215
forms of property, including residential premises, private vehicles and personal possessions.”
Due to the important role that the Intelligence Services play in safeguarding the national security
205 Id., c. 50, § 95.
206 Id., c. 50, § 97.
207 Id., c. 50, §§ 97 and 91.
209 The other bodies are: any UK police force, including PSNI and the police forces of HM Forces; the SOCA; Her
Majesty’s Customs and Excise; any of the intelligence services (MI5, MI6, GCHQ); the Ministry of Defence Police; or
British Transport Police.
210 18 U.S.C. 2510-2520.
211 18 U.S.C. 2516.
212 18 U.S.C. 2518(5).
213 18 U.S.C. 2518(8)(d).
214 Intelligence Service Act 1994, c. 13, § 5.
215 Investigatory Powers Tribunal, Interference with Property, Jan. 2005, available at http://www.ipt-uk.com/
of the UK, the requirements for an authorization under the ISA are much broader than under the
RIPA. The Secretary of State must believe that:
• the conduct is necessary on the ground that it is likely to be of substantial value
in assisting the Security Service, Intelligence Service, or GCHQ in carrying out
any of its statutory functions, although, with the exception of the Security
Service, a warrant cannot be granted in support of the prevention or detection of
serious crime in relation to property in the British Islands;
• the information sought cannot reasonably be achieved by other means;216 and
• the Director General of the Service has safeguards in place, as required under the
1989 Act, which provide that only information required for the Service to carry
out its functions is obtained, and that the information obtained is only disclosed 217
as necessary or for the purpose of preventing or detecting serious crime.
Warrants issued by the Secretary of State under these provisions continue for a period of six
months, unless issued by a senior official in urgent circumstances, in which case the warrant 218
expires on the second working day after it was issued.
Warrants issued by the Prime Minister for the Intelligence Services or GCHQ may be reviewed
by a Commissioner appointed by the Prime Minister. The Commissioner must hold, or have held,
high judicial office and must also provide an annual report on the use of his functions to the
Prime Minister, which is laid before Parliament with “matter ... prejudicial to the continued 219
discharge of the functions of” the Security Services removed.
Members of the public who believe their property or wireless telegraphy has been interfered with
by the Intelligence Services may file a complaint with the Investigatory Powers Tribunal who
may conduct an investigation on their behalf.
In the United States, FISA permits the Attorney General to approve applications for a FISA court 220
order authorizing interceptions for certain foreign intelligence purposes, as noted earlier. The
tenure of such orders ranges from ninety days to one year depending upon the target and they 221
may be extended for equal intervals. Those whose communications are intercepted pursuant to
a FISA order are notified of that fact when the government decides to use the intercepted 222
communications as evidence in a judicial or administrative proceeding.
Prior to the enactment of the Security Service Act 1996, the Service could not obtain
authorization to conduct activities in connection with supporting the police forces and law
216 Intelligence Service Act 1994, c. 13, § 5.
217 Security Services Act 1989, c. 5, § 2(2)(a).
218 Intelligence Services Act 1994, c. 13, § 6.
219 Intelligence Services Act 1994, c. 13, § 9.
220 50 U.S.C. 1801-1811.
221 50 U.S.C. 1805(e).
222 50 U.S.C. 1806(c).
enforcement agencies in the prevention and detection of serious crime if the action related to 223
property in the British Islands. This restriction was removed by the Security Service Act 1996,
which granted the Service the authority to apply to the Secretary of State to obtain a warrant to
interfere with property or wireless telegraphy on the British Isles under the same criteria as above
• the purpose is to prevent or detect serious crime;
• in support of law enforcement agencies; and
• the acts investigated constitutes an offense and involves the use of violence; or
results in substantial financial gain; or are conducted by a large number of
persons in pursuit of a common purpose; or the offense is one which a person
over the age of twenty one with no prior convictions could be sentenced to 224
imprisonment for three or more years for.
The Secretary of State must also be satisfied that the Director General of the Security Services
has arrangements in place for the coordination of the activities of the security services with the 225
police and other law enforcement agencies. Warrants issued by the Secretary of State under
these provisions continue for a period of six months, unless issued by a senior official in urgent
circumstances, in which case, the warrant expires on the second working day after it was 226
The Security Service can also obtain a warrant to interfere with property or wireless telegraphy if
it is acting on behalf of the Intelligence Service or GCHQ and the action proposed is to be 227
“undertaken otherwise than in support of the prevention or detection of serious crime.”
The Security Service Act 1996 was disturbing to many individuals and civil rights organizations
as it essentially granted the Service, an agency considered to have a lack of oversight, 228
transparency, and democratic accountability, powers that were traditionally the responsibility of
the police. Lord Justice Browne-Wilkinson believed that the 1996 Act essentially granted 229
executive warrants and stated:
I am not for the carrying over of powers, which are unhappily necessary in the context of
national security, into a policing function enabling a member of the Executive to sanction
entry onto private property without prior judicial warrant. We are not just legislating for this
Government or the next ... we are actually impairing the constitutional freedoms of the 230
individuals of this country.
Human rights organizations further criticized the Security Services Act, notably with regard to the
apparent lack of judicial oversight in the authorization process, stating that “a member of the
223 Intelligence Service Act 1994, c. 13, § 5(3).
224 Id., § 5.
225 Security Services Act 1996, c. 35, § 1.
226 Intelligence Service Act 1994, c. 13, § 6.
227 Id., § 5.
228 CLIVE WALKER, BLACKSTONE’S GUIDE TO THE ANTI-TERRORISM LEGISLATION 164 (2002).
229 Executive warrants are contrary to the constitutional principles established in Entick v. Carrington, 19 St. Tr. 1030
230 573 PARL. DEB., H.L. (5th ser.) 1044.
executive lacks the necessary independence to authorize interception by a state agency and that it
offends against the concept of the separation of powers; a senior judge would be a more
appropriate arbiter of the balance between the rights of the individual and the interests of the 231
Experience in the United States was similar, but restrictions on the involvement of the
intelligence officials in purely domestic law enforcement investigations remains. Before passage
of the USA PATRIOT Act, FISA’s interception and physical search authority could only be
invoked upon certification that the acquisition of foreign intelligence information was “the 232
purpose” for the request. After enactment of the USA PATRIOT Act, such acquisition need 233
only be a “significant purpose” for the request, and the Act makes it clear that cooperation 234
between intelligence and law enforcement officers does not preclude certification. FISA
authority may not be used, however, solely for the purpose of investigating or aiding in the 235
investigation of criminal offenses unrelated to foreign intelligence activities.
Despite the expansive laws relating to the interception of communications, information obtained
in such a manner is not usable as evidence in a court of law, even if every legal requirement has 236
been met. This restriction has recently been reviewed and, despite severe criticism, notably that
from the opposition government that the use of such evidence may allow the prosecution of 237
suspected international terrorists, the government decided to maintain this prohibition. The
government stated that the disclosure of intercepted communications could undermine the
intercept capabilities and lead to their methods becoming public knowledge and thus 238
ineffective. The Home Office asserts that the main use of the findings of intercepted
communications is to help “intelligence agencies and law enforcement decide how best and
where to deploy the techniques they use to get evidence for courts such as surveillance, 239
eavesdropping and the use of informants.”
A law professor in the UK has been strongly critical over the government’s decision to maintain
the ban on the use of intercept evidence in the courts, opining:
The disadvantage of the exclusionary rule ... is that a number of bad and dangerous people
cannot be tried for their crimes, although cogent and irrefutable evidence exists against
them—a ... problem that the Home Secretary wants to solve not by abolishing the ban, but by
231 JUSTICE, Regulation of Investigatory Powers Bill: Human Rights Audit, May 2000.
232 50 U.S.C. 1804(a)(7)(B)(2000 ed.); 1823(a)(7)(B)(2000 ed.).
233 50 U.S.C. 1804(a)(7)(B); 1823(a)(7)(B).
234 50 U.S.C. 1806(k); 1825(k).
235 In re Sealed Case, 310 F.3d 717, 735-36 (F.I.S.Ct. Rev. 2002).
236 Regulation of Investigatory Powers Act 2000, c. 23, § 17.
237 Professor J. R. Spencer, Tapping into the Telephone, N.L.J. 155.7166 (309) (2005).
238 Home Office, Security: Surveillance, Jan. 2005, available at http://security.homeoffice.gov.uk/surveillance/
communications-service-providers/146085 (last visited Apr. 10, 2006).
239 Home Office, Use of Communications Intercept as Evidence, available at http://security.homeoffice.gov.uk/
surveillance/interception/communications-intercept/ (last visited Sept. 1, 2006).
abolishing the need for trials, and giving himself the legal power to put them under house 240
arrest without one.
The former Director General of the Security Service (MI5) has publicly announced his reluctant
support over the continued prohibition on the use of intercept evidence in court stating:
I have reluctantly come to the conclusion that due to the changing nature of telephone
technology and the importance, during a period of change, of not sensitising terrorists and
serious criminals to particular capabilities that will be important for the future, there are 241
indeed good reasons not to remove the bar on the use of intercept in our courts.
The government responded to suggestions that the ban on the use of intercept evidence be
removed by stating that the extensive review has concluded the use of intercepted evidence would
only produce a ‘modest’ increase in the number of prosecutions for serious criminal offenses but
none for terrorists.
Despite the restrictions, there are some limited circumstances in which intercept evidence can be
used as evidence. Section 18(4) of the RIPA permits the use of intercepted communication as
evidence if one party consented to the intercept. The courts have interpreted the prohibition on
using intercept evidence narrowly, holding that it only applies to communications intercepted in
the UK, permitting the admittance of intercepted communications obtained legally abroad.
Moreover, the evidentiary restrictions do not appear to extend to information obtained through
electronic bugging. The police have continued to obtain information through electronic
surveillance devices without proper authorization. In several instances, evidence obtained from
this police ‘bugging’ has been permitted as evidence in court despite judges in each cases 242
specifically saying that the evidence was obtained in probable or direct breach of the ECHR. In
one case, evidence from two co-accused obtained through an electronic surveillance device
placed in their police holding cell was permitted to be used in court, despite the fact that the co-243
accused had exercised their right to silence. The European Court of Human Rights has
provided that intelligence obtained in breach of Article 8 of the ECHR through the unlawful
installation of a listening device in a person’s home or covert listening devices in police stations is
admissible as evidence as “any breach of Article 8 is subsumed by the Article 6 duty to ensure a 244
In contrast to the law in the United Kingdom, in the United States, evidence lawfully secured
pursuant to either a Title III or a FISA interception order does not become inadmissible in judicial 245
proceedings solely by virtue of that fact. Yet as noted earlier, lawful interception does not strip 246
privileged communications of any of the privileged status they otherwise enjoy.
240 Professor J. R. Spencer, Tapping into the Telephone, N.L.J. 155.7166 (309) (2005).
241 Sir Stephen Lander, Tapping and Terror, INDEPENDENT (London), Feb. 7, 2005.
242 R v Bailey  All ER 513; R v Khan  AC 558 and Khan v the UK (2001) EHRR 1016.
243 R v Bailey  All ER 513.
244 BLACKSTONE’S CRIMINAL PRACTICE 2006, (Peter Murphy et al. eds., 2006) 2202 referring to Button  Crim LR
571. See also Chalkley v the UK  Crim LR 51; PG and JH v the UK  Crim LR 308; Perry v the UK 
Crim LR 281 and Mason  2 Cr App R 628.
245 18 U.S.C. 2517(3); 50 U.S.C. 1806.
246 18 U.S.C. 2517(4); 50 U.S.C. 1806(a).
The warrant process for the interception of communications is overseen by an independent
Interception of Communications Commissioner (ICC). The ICC is responsible for ensuring that
“authorised agencies have proper processes in place, and have considered the human rights of 247
individuals before interception takes place;” and review the exercise and performance by the
Secretary of State of the powers granted upon him regarding authorizing the interception of 248
communications under the RIPA. The 2004 Annual Report on the use of the Regulatory Powers
Act to intercept communications prepared by the ICC noted that the personnel conducting
... a detailed understanding of the legislation and strive assiduously to comply with the
statutory criteria ... in my view, there is very little, if any, danger that an application which is
defective in substance will be placed before the Secretary of State ... [the agencies] welcome
the oversight of the Commissioner, both from the point of view of seeking his advice, which
they do quite frequently, and as a reassurance to the general public that their activities are 249
overseen by an independent person who has held high judicial office.
Interference with property by the Intelligence Services is subject to oversight by the Intelligence
Services Commissioner (ISC), currently the Right Honourable Sir Peter Gibson. Both these
Commissioners are appointed by, and report to, the Prime Minister.
The Office of Surveillance Commissioners further oversees any interference with property by the
Police under Part III of the Police Act 1997 as well as “surveillance and the use of Covert Human
Intelligence by all organizations bound by RIPA, with the exception of the Intelligence 250
Services” which, as noted above are overseen by the Intelligence Services Commissioner. The
OSC has a budget of over one million pounds (approximately $1.8 million) and reviews
authorizations under RIPA by the Police, SOCA and Her Majesty’s Customs that involves entry 251
on, or interference with the property or wireless telegraphy without the consent of the owner.
Surveillance Commissioners are appointed by the Prime Minister for a term of three years,
although they may be removed earlier by a resolution from each House of Parliament that has
been approved by the Scottish Parliament. The Surveillance Commissioners must either hold, or
have held, a high judicial office, whilst Assistant Surveillance Commissioners either hold, or have
held, office as a Crown Court or Circuit Judge; Sheriffs in Scotland or County Court Judges in 252
There is no exact replica of the UK safeguard under U.S. law, but similar benefits may follow as a 253
consequence of the issuing court’s continued authority over interception orders it issues and of
247 Home Office, Checks on Surveillance, available at http://www.homeoffice.gov.uk/security/surveillance/regulations
(last visited Sept. 1, 2006).
248 Regulation of Investigatory Powers Act 2000, c. 23, § 57(2).
249 INTERCEPTION OF COMMUNICATIONS COMMISSIONER, REPORT OF THE INTERCEPTION OF COMMUNICATIONS
COMMISSIONER FOR 2004, 2004-5, HC 549.
250 Investigatory Powers Tribunal, Additional Oversight, May. 2006, available at http://www.ipt-uk.com/
251 Office of Surveillance Commissioners, Establishment and Responsibilities, 2003, available at
252 Regulation of Investigatory Powers Act 2001,c. 23, § 65 and the Police Act 1997, c. 50, § 91.
253 18 U.S.C. 2517, 2518.
the various required reports to the public and Congress on the use of the authority under Title III 254
There is no statutory requirement for any body that has the authority to intercept communications
through a warrant to disclose these activities to any person subject to the intercept. Despite the
lack of requirements to notify subjects of the intercept, a body was established to address
complaints by members of the public over any acts the person believes are “inappropriate
interception activities by any of the intelligence services, and in some circumstances, by public 255256
authorities.” The complaints are investigated by an Investigatory Powers Tribunal (IPT),
established under Part IV of the Regulation of Investigatory Powers Act 2000, and governed by 257
the Investigatory Powers Tribunal Rules 2000. In 2004, the IPT received ninety new
applications and completed investigations into forty nine applications, at no time concluding that 258
there had been a contravention of RIPA or the Human Rights Act 1998.
Members of the IPT are appointed by letters patent by the Queen for five year terms with no
restriction on re-appointment and must be senior members of the legal profession, with the 259
president and vice president either holding or previously holding high judicial office. There are
currently eight members on the IPT. The RIPA further regulates: “who may be appointed a
member of the Tribunal; the jurisdiction of the Tribunal; the obligations of organizations and
individuals in providing information to the Tribunal; the right of the Secretary of State to make
Rules regarding the Tribunal; and the disclosure of information aspects of any hearings deemed 260
necessary by the Tribunal notification to the complainant.”
The IPT’s role is not to inform complainants whether their telephones have been tapped or
whether they have been subject to other forms of surveillance activity. Its role is to determine
whether the relevant legislation has been complied with and whether the organizations with
authority under the legislation have acted reasonably. If complaints are upheld, the IPT does have
discretion to disclose the details of any conduct undertaken to the complainant; however, for
those not upheld, no information is disclosed regarding whether or not the complainant has been 261
subject to any interception or surveillance activities.
254 18 U.S.C. 2519; 50 U.S.C. 1807, 1808.
255 Home Office, Checks on Surveillance, available at http://www.homeoffice.gov.uk/security/surveillance/regulations
(last visited Sept. 1, 2006).
256 The Investigatory Powers Tribunal, PO Box 33220, London, SW1H 9ZQ, Tel: 011-44-207-035-3711 “The IPT
replaced the Interception of Communications Tribunal, the Security Service Tribunal, the Intelligence Services
Tribunal and the complaints provision of Part III of the Police Act 1997 (concerning police interference with property)
in October 2000.” Investigatory Powers Tribunal, Legal Provisions, Jan. 2005, available at http://www.ipt-uk.com/
257 The Investigatory Powers Tribunal Rules 2000, SI 2000/2665.
258 INTERCEPTION OF COMMUNICATIONS COMMISSIONER, supra footnote 250, at ¶ 37.
259 Investigatory Powers Tribunal, Structure of the Tribunal, Jan. 2005, available at http://www.ipt-uk.com/
261 Investigatory Powers Tribunal, FAQs, Jan. 2003, available at http://www.ipt-uk.com/
The IPT investigates allegations by members of the public who believe that action has been taken
against themselves, their property or communications by an organization that has been granted
authorization to conduct such activities by the Regulation of Investigatory Powers Act. In reality,
this is the only forum in which the activities of the Security Services can be questioned by
members of the public and, as such, it has a broad remit regarding the scope of conduct it can
In cases where members of the public suspect that their communications have been intercepted or 262
that they have been subject to surveillance by certain bodies, the IPT can investigate whether
the requirements and conditions for the issuance of a warrant to intercept communications have
been met; and whether that the proper authorization has been sought and approved throughout the 263
interception process. Under the RIPA, the organizations responsible for issuing authorizations 264
are required to provide the IPT with information relating to the complainant. Additionally, the
IPT can “demand clarification or explanation of any information provided, order an individual to 265
give evidence in person, inspect an organization’s files, or take any other action it sees fit.” No
charge is made to complainants for the investigation of their allegations, with the IPT’s resources
being provided for by the government.
If evidence from the IPT’s investigation leads to a determination, based on the principles of
judicial review, that the RIPA has been contravened and that the organization has not acted
reasonably it can uphold the complaint and has the discretion take “remedial measures such as the
quashing of any warrants, destruction of any records held or financial compensation, may be 266
imposed at the Tribunal’s discretion.” If the IPT does not find that the legislation has been
contravened or finds that the organization has acted reasonably, it will not uphold a complaint.
The IPT states that not upholding a complaint may mean that “any conduct has been properly
authorised and guidelines complied with, or that the Tribunal are satisfied that the conduct 267
complained of has not taken place.”
262 The bodies which might be believed to have performed activities in relation to the interception of communications
are: any of the Intelligence Services; the Serious Organized Crime Agency (SOCA); the Metropolitan Police; the Police
Service for Northern Ireland (PSNI); a Scottish police force; H.M. Customs & Excise (HMC&E); or one of H.M
Armed Forces. If the individual believes that his communications have been intercepted by another body, the
appropriate authority to contact is the police. The bodies contacted to investigate whether activities have been
committed in relation to intrusive surveillance are: any UK police force, including PSNI and the police forces of HM
Forces; the SOCA; Her Majesty’s Customs and Excise; any of the intelligence services; the Ministry of Defence Police;
or the British Transport Police.
263 Investigatory Powers Tribunal, Interception of Communications, Jan. 2005, available at http://www.ipt-uk.com/
default.asp?sectionID=1&chapter=1. In order to commence an investigation, the IPT requires the complainants name,
address, date of birth, name of the organization the claim relates to, telephone numbers, all postal and e-mail addresses
(for allegations of interception of telecommunications) and various details of the conduct complained about. Only the
name, address and date of birth is revealed to the organization during the IPT’s initial investigation to “to enable record
searches to be made to see if any information is held.” Further information is only released if the IPT is granted
permission by the complaining party to do so; however, the IPT notes that it will be unable to “conduct as thorough an
investigation if [the complainant does] not consent to these details being disclosed.” Investigatory Powers Tribunal,
How to Complain to the Tribunal, Apr. 2005, available at http://www.ipt-uk.com/default.asp?sectionID=3.
264 Regulation of Investigatory Powers Act 2000, c. 23, § 81 and the Investigatory Powers Tribunal, How to Complain
to the Tribunal, Apr. 2005, available at http://www.ipt-uk.com/default.asp?sectionID=3.
265 Regulation of Investigatory Powers Act 2000, c. 23, § 81, and the Investigatory Powers Tribunal, FAQ’s, Jan. 2003,
available at http://www.ipt-uk.com/default.asp?sectionID=FAQ&Q=1.
266 Investigatory Powers Tribunal, How to Complain to the Tribunal, Apr. 2005, available at http://www.ipt-uk.com/
In the United States, Title III requires that individuals named in an interception order be notified 268
after the order has expired. Unlawful interception may result in suppression of any resulting 269
evidence and unlawful interceptions may expose offenders to criminal, civil and administrative 270
The RIPA provides for the lawful acquisition and disclosure of communications data in specified
circumstances. The definition of communications data was subject to a great deal of
Parliamentary debate as the requirements to obtain authorization, and the list of those who can
request an authorization, are not as stringent as for surveillance or the interception of
communications. Communications data does not include the content of the communication, but
the information that relates to the use of a communication service, such as telephone records
(including the number called, duration of the call); Internet records (including sites visited, the
sender, recipient, date and time of email messages); and information on the individual using the 271
service held by the operator, such as subscriber information.
An authorization to obtain communications data can only be obtained if it is necessary:
• in the interests of national security or the economic well being of the UK;
• for the purposes of preventing or detecting crime or preventing disorder;
• in the interests of public safety;
• for assessing or collecting of any tax, duty, levy or other imposition; or
• to protect public health or, in an emergency, to prevent the death, injury or 272
damage to an individual’s physical or mental health, or mitigate such damage.
The class of officials who can grant authorization to obtain communications data is much broader
than in the other areas of surveillance, and authorization can be “granted internally by an official 273
in the relevant public authority [with] no limitation on those who may apply for authorization.”
A controversial aspect of the RIPA is the requirement that providers of public communications
services must maintain the capability to intercept communications and retain communications 274
data. Communications providers, particularly Internet Service Providers, considered that
maintaining such a capability would be costly and infringe upon the privacy of their customers.
The RIPA does place a duty on the Secretary of State to make contributions, where appropriate, to
the costs incurred by postal and telecommunications operators when complying with an order to
268 18 U.S.C. 2518(8)(d).
269 18 U.S.C. 2518(10); 50 U.S.C. 1806(g).
270 18 U.S.C. 2511, 2520, 2712; 50 U.S.C. 1809.
271 RIPA §22(4). See also Home Office, Security: Surveillance, available at http://security.homeoffice.gov.uk/
surveillance/access-to-data/definition-communications-data/ (last visited Apr. 10, 2006).
272 Regulation of Investigatory Powers Act 2000, c. 23, § 22(2).
273 2 CURRENT LAW STATUTES 2000, (Christine Beesley et al. eds., 2000) and Regulation of Investigatory Powers Act
2000, c. 23, § 22.
274 Regulation of Investigatory Powers Act 2000, c. 23, § 12.
retain or disclose communications data.275 The ATCSA further expanded these duties, requiring
communications service providers to retain communications data after the period necessary for
business purposes for national security and crime prevention so that it can be accessed under the 276
Regulation of Investigatory Powers Act when necessary. The provision has been criticized as 277
giving police the ability to obtain a “complete dossier on private life.” These requirements
appear to soon become standard and more stringent with the passage of an EU Directive,
spearheaded by the UK, which mandates communications providers not just provide the ability to 278
retain but actually retain communications data for up to two years as a law enforcement aid.
The comparable provisions under the laws of the United States permit law enforcement and
intelligence access to such communications data—and in some instances to stored
communications content—under several schemes. The procedural requirements for law
enforcement access to stored wire or electronic communications and transactional records deal
with two kinds of information—often in the custody of the telephone company or some other
service provider rather than of any of the parties to the communication—communications records
and the content of electronic or wire communications. Law enforcement officials are entitled to
• with the consent of the one of the parties;279
• on the basis of a court order or similar process under the procedures established 280
in Title III/ECPA;
• in certain emergency situations;281 or
• under one of the other statutory exceptions to the ban on service provider 282
Section 2703, which affords law enforcement access to the content of stored wire and electronic
communications, distinguishes between recent communications and those that have been in
electronic storage for more than six months. Government officials may gain access to wire or
electronic communications in electronic storage for less than 6 months under a search warrant
issued upon probable cause to believe a crime has been committed and the search will produce 283
evidence of the offense.
275 Id., § 24.
276 Id., § 102.
277 Britain’s Al Qaeda Connections, Jan. 29, 2002, available at http://news.bbc.co.uk/1/hi/uk/1775683.stm, and supra
footnote 153, at 157.
278 Wendy M. Grossman, Will logging your email combat terrorism in Europe? GUARDIAN (London) Jan. 12, 2006,
available at http://technology.guardian.co.uk/weekly/story/0,16376,1683944,00.html.
279 18 U.S.C. 2702(b)(3),(c)(2).
280 18 U.S.C. 2702(b)(2), (c)(1).
281 18 U.S.C. 2702(b)(8),(c)(4).
282 18 U.S.C. 2702(b)(1),(4),(5),(6),(7); (c)(3).
283 18 U.S.C. 2703(a). The 21st Century Department of Justice Appropriations Authorization Act, 116 Stat. 1822
(2002), amended section 2703 to permit execution of the warrant by service providers and others without requiring the
presence of a federal officer, 18 U.S.C. 2703(g)(“Notwithstanding section 3105 of this title, the presence of an officer
shall not be required for service or execution of a search warrant issued in accordance with this chapter requiring
disclosure by a provider of electronic communications service or remote computing service of the contents of
communications or records or other information pertaining to a subscriber to or customer of such service”), see United th
States v. Bach, 310 F.3d 1063 (8 Cir. 2002)(the Fourth Amendment does not require the presence of a federal officer
The government must use the same procedure to acquire older communications or those stored in
remote computer storage if access is to be afforded without notice to the subscriber or 284
customer. If government officials are willing to afford the subscriber or customer notice or at
least delayed notice, access may be granted under a court order showing that the information
sought is relevant and material to a criminal investigation or under an administrative subpoena, a 285
grand jury subpoena, a trial subpoena, or court order. Under the court order procedure, the
court may authorize delayed notification in ninety day increments in cases where 286
contemporaneous notice might have an adverse impact. Government supervisory officials may 287
certify the need for delayed notification in the case of a subpoena. Traditional exigent
circumstances and a general inconvenience justification form the grounds for delayed
• danger to life or physical safety of an individual;
• flight from prosecution;
• destruction of or tampering with evidence;
• intimidation of potential witnesses; or
• seriously jeopardizing an investigation.288
Comparable, if less demanding, procedures apply when the government seeks other customer
information from a service provider (other than the content of a customer’s communications). The
information can be secured:
• with a warrant;
• with a court order;
• with customer consent;
• with a written request in telemarketing fraud cases; or
• with a subpoena in some instances.289
Most customer identification, use, and billing information can be secured simply with a subpoena 290
and without customer notification.
Intelligence investigators have access to customer communications data under two procedures. 291
First, there is the FISA business record or tangible item authority. Prior to the USA PATRIOT
Act senior FBI officials could approve an application to a FISA judge or magistrate for an order
when technicians execute a search warrant on a service provider’s server).
284 18 U.S.C. 2703(a), (b)(1)(A), (2).
285 18 U.S.C. 2703(b)(1)(B), (d).
286 18 U.S.C. 2705(a)(1)(A), (4).
287 18 U.S.C. 2705(a)(1)(B), (4).
288 18 U.S.C. 2705(a)(2), (b).
289 18 U.S.C. 2703(c)(1),(3).
290 18 U.S.C. 2703(c)(2),(3).
291 50 U.S.C. 1861.
authorizing common carriers, or public accommodation, storage facility, or vehicle rental
establishments to release their business records based upon certification of a reason to believe that 292
the records pertained to a foreign power or the agent of a foreign power. The USA PATRIOT
Act and later the USA PATRIOT Improvement and Reauthorization Act temporarily rewrote the 293
procedure. In its temporary form, it requires rather than authorizes access; it is predicated upon
relevancy rather than probable cause; it applies to all tangible property (not merely records); and
it applies to the tangible property of both individuals or organizations, commercial and 294
otherwise. It is limited, however, to investigations conducted to secure foreign intelligence 295
information or to protect against international terrorism or clandestine intelligence activities.
Recipients are prohibited from disclosing the existence of the order, but are expressly authorized 296
to consult an attorney with respect to their rights and obligations under the order. They enjoy 297
immunity from civil liability for good faith compliance. They may challenge the legality of the 298
order and/or ask that its disclosure restrictions be lifted or modified. The grounds for lifting the
secrecy requirements are closely defined, but petitions for reconsideration may be filed 299
annually. The decision to set aside, modify or let stand either the disclosure restrictions of an 300
order or the underlying order itself is subject to appellate review.
As addition safeguards, Congress:
• insisted upon the promulgation of minimization standards;301
• established use restrictions;302
• required the approval of senior officials in order to seek orders covering the 303
records of libraries and certain other types of records;
• confirmed and reenforced reporting requirements;304 and
• directed the Justice Department’s Inspector General to conduct an audit of the use 305
of the FISA tangible item authority.
292 50 U.S.C. 1862 (2000 ed.).
293 Under section 102(b) of the USA PATRIOT Improvement and Reauthorization Act, the FISA tangible items
provisions revert to their pre-USA PATRIOT Act form on December 31, 2009, except with regard to foreign
intelligence investigations initiated before that date or “any particular offense or potential offense that began or
occurred before” that date, P.L. 109-177, §102(b), 120 Stat. 195 (2006).
294 50 U.S.C. 1861(a),(b),(c).
295 50 U.S.C. 1861(a).
296 50 U.S.C. 1805(d).
297 50 U.S.C. 1861(e).
298 50 U.S.C. 1861(f)(1), (2)(A), (2)(B).
299 50 U.S.C. 1861(f)(2)(C), (D).
300 50 U.S.C. 1861(f)(3),(4),(5).
301 50 U.S.C. 1861(g); see also 50 U.S.C. 1861(c)(1).
302 50 U.S.C. 1861(h).
303 50 U.S.C. 1861(a)(3).
304 50 U.S.C. 1862.
305 P.L. 109-177, §106A, 120 Stat. 200-2 (2006).
The second, and perhaps more likely, avenue affords access to communications records through a 306
“national security letter.” The national security letter procedure allows senior Federal Bureau of
Investigation (FBI) officials and the heads of FBI field offices to request service providers to
supply the name, address, length of service, and local and long distance toll billing records of a
person or entity upon certification that the information is relevant to an investigation to protect 307
against international terrorism or espionage. The letter may include a ban on disclosure of the
fact the information has been requested, and the letter’s demands are judicially enforceable and 308
reviewable. Addition safeguards include periodic reports to Congress and an audit by the 309
Department of Justice’s Inspector General.
Clare Feikert Charles Doyle
Senior Specialist in American Public Law
306 18 U.S.C. 2709.
307 18 U.S.C. 2709(b).
308 18 U.S.C. 2709(c); 28 U.S.C. 3511.
309 18 U.S.C. 2709(e); P.L. 109-177, §§118, 119, 120 Stat. 217, 219 (2006).