Anti-Terrorism Authority Under the Laws of the United Kingdom and the United States

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

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
United States.

Introduc tion ..................................................................................................................................... 1
Police Stop and Search Powers.......................................................................................................2
Police Arrest Powers.......................................................................................................................4
Detention of Suspected Terrorists....................................................................................................4
Control Orders.................................................................................................................................7
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,

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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

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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.”

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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^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^{0, c}^.¹¹^,^§§⁴¹^-^43.
³²^{Katz v}^.^Un^ite^d^Sta^t^e^s^{, 3}^{89 U}^.^S.³^47,³⁵^{7 (}¹⁹⁶⁷⁾^.
³³^Uⁿ^ite^d^St^ate^s^v^.^Prⁱⁿ^gle^,⁵⁴^{0 U}^.^S^.³⁶^6,³⁷^{0 (}²⁰⁰³⁾^.
³⁴^Uⁿ^ite^d^St^ate^s^v^.^Ar^vⁱ^z^u^,⁵³^{4 U}^.^S^.²⁶^6,²⁷^{3 (}²⁰⁰²⁾^.
³⁵^Uⁿ^ite^d^St^ate^s^v^.^Flor^e^s^-^M^on^ta^no^,⁵⁴^{1 U}^.^S^.¹⁴⁹^,¹^52-⁵³⁽²⁰⁰⁴⁾^.
³⁶^Ka^up^p^v.^T^exa^s^,⁵³^{8 U}^.^S^.⁶²⁶^,⁶^{30 (}²⁰⁰³⁾⁽^“^[^W^]^e^ha^v^e^ne^v^e^r^‘^s^us^ta^ine^d^a^g^aⁱ^ns^{t F}^our^t^h^A^m^e^ndm^eⁿ^t^c^h^a^lle^ng^e^the
^inv^o^lu^nta^r^y^re^m^o^v^a^{l o}^f^a^suspe^c^t^f^r^o^m^{his hom}^e^{to a}^p^o^lic^e^sta^tioⁿ^a^{nd h}ⁱ^{s de}^te^nt^io^{n the}^r^e^f^o^{r i}ⁿ^v^e^stig^a^tiv^e^purpose^s
^a^b^s^e^{nt pr}^oba^b^l^e^c^a^u^s^e^or^j^udicⁱ^a^l^a^u^thor^iz^a^tion’^”⁾⁽^qu^otin^g^Ha^{yes v.}^F^l^o^rⁱ^d^a^,⁴^{70 U}^.^S.⁸¹^1,⁸¹^{5 (}¹⁹⁸⁵⁾⁾^.
³⁷^Eur^o^pe^aⁿ^C^onv^eⁿ^ti^{on f}^o^r^t^h^e^P^r^o^t^e^c^tion^of^H^u^m^a^{n R}ⁱ^g^h^ts^a^{nd Fu}ⁿ^d^a^m^eⁿ^ta^{l Fr}^e^e^dom^s^,^ope^ne^{d f}^o^r^sⁱ^gⁿ^a^t^ur^e^N^o^v^.^4,
¹⁹⁵^0,²¹^{3 U}^N^T^{S 2}^22.
³⁸^H^u^m^a^{n R}ⁱ^g^h^ts^A^c^{t 1998, c}^.⁴²^.
³⁹^C^u^r^r^e^ntly^{, tw}^{o s}^itua^tio^ns^to^w^h^ic^{h the}^pr^o^hⁱ^b^iti^on^doe^s^{not a}^pply^a^r^e^the^de^te^nti^oⁿ^f^o^r^tr^e^a^t^m^e^{nt a}^nd^a^s^s^e^s^s^m^e^{nt of}
ⁱⁿ^dⁱ^vi^du^al^{s w}ⁱ^t^h^dⁱ^agno^sed^m^eⁿ^t^al^h^eal^t^h^dⁱ^so^r^d^{ers w}^h^en^t^h^ey^{are b}^e^lⁱ^e^ved^t^o^b^e^a^d^aⁿ^g^{er t}^o^t^h^em^sel^v^{es o}^r^t^h^{e saf}^e^t^y^o^f
^othe^r^s^{; a}ⁿ^d^de^te^ntio^{n t}^h^a^t^is^dis^p^r^opo^r^tio^na^te^to^the^of^f^e^ns^e^f^o^r^pe^ople^c^onv^ic^te^d^of^c^r^im^e^s^,^w^h^eⁿ^{it i}^s^be^lie^v^e^{d tha}^t^s^u^c^h
ⁱⁿ^dⁱ^vi^du^al^{s are a t}^h^reat^t^o^so^ci^et^y^.
⁴⁰^A^{v S}^ecret^a^r^{y o}^f^S^t^a^t^{e f}^o^r^t^h^{e Home Dep}^a^r^t^m^en^t^,^[2⁰⁰^4]^UKHL⁵⁶^{¶ 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

2003 and from fourteen days to twenty-eight days by a highly contentious provision in the ⁴⁸

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^P^r^e^v^eⁿ^tion^of^T^e^r^r^o^rⁱ^sm⁽^T^em^po^r^a^r^y^P^r^ov^is^io^ns⁾^A^c^{t 198}^{4, c}^.^8.
⁴²^Id^.
⁴³^Br^og^an^an^d^othe^r^s^v^t^h^e^U^K^{, (}¹⁹⁸⁹⁾¹¹^EH^R^R¹^17.
⁴⁴^M^a^ry^O’Ra^we,^Ethnic^Pr^ofili^ng,^Policⁱⁿ^{g, an}^{d Suspe}^c^t^C^o^mmun^iti^e^s^{: Le}^{ssons from No}^rt^he^{rn Ire}^l^aⁿ^d^{, 2}⁰⁰⁵^{, O}^p^eⁿ
^Socⁱ^e^t^y^Justic^e^Initia^tiv^e^,^a^t^92,^a^v^aila^ble^at^htt^p^://w^ww^.justic^eⁱ^nitia^tiv^e^.^org^/^db/^re^sourc^e²^/^f^s/^?^f^ile^_id⁼¹⁵⁷^99.
⁴⁵^For^m^e^r^I^R^A^C^o^m^m^a^nde^r^Jⁱ^m^McVe^ig^h,^qu^ote^dⁱⁿ^{M. O}^’^C^oⁿⁿ^or^aⁿ^{d C}^.^R^u^m^a^nn,^Iⁿ^to^th^e^Fⁱ^r^e^:^H^o^w^t^o^A^v^oⁱ^d
^G^e^{tting B}^u^rⁿ^e^d^by^t^h^e^S^a^m^e^Mⁱ^s^t^ak^e^s^M^ade^Figh^tiⁿ^g^T^e^rro^{rism in}^No^rth^e^rn^Irelan^d^{, 2}⁴^C^A^R^DOZ^O^L^AW^R^EV^IE^W¹⁶⁵^7,
¹⁶⁶^{2 (}²⁰⁰⁵⁾^.
⁴⁶^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^0,^{§ 4}¹^.
⁴⁷^Fo^rm^{er IRA}^Co^mman^d^e^{r Jim}^Mc^V^e^ig^h^,^s^upr^a^f^o^o^t^no^t^e⁴⁵^.
⁴⁸^T^h^e^g^o^v^e^rn^m^e^{nt initia}^lly^wa^nte^d^{to e}^x^te^{nd t}^h^e^pe^ri^od^of^de^te^nti^on^t^o^a^to^ta^{l pe}^ri^od^of^nine^ty^da^y^s^{in t}^h^e^T^e^rrorism
^A^c^{t, but to}^eⁿ^s^u^r^e^t^h^e^bil^l^pa^s^s^e^{d t}^h^r^o^ug^h^P^a^r^lia^m^e^{nt, the}^g^o^v^e^rⁿ^m^e^{nt r}^e^d^u^c^e^d^th^is^to^tw^eⁿ^t^y^eⁱ^g^h^{t da}^y^s^a^{nd ins}^e^r^t^e^d^a
^suⁿ^s^et^cl^au^{se t}^h^at^t^hⁱ^s^p^r^o^vⁱ^sⁱ^oⁿⁱ^s^t^o^expⁱ^{re on}^{e y}^{ear a}^f^t^e^{r i}^t^s^en^act^men^t^.
⁴⁹^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^0,^{§ 4}¹^aⁿ^{d s}^c^{h. 8}^,^a^s^a^m^e^nde^{d by}^the^T^e^r^r^o^rⁱ^s^m^A^c^{t 200}^6,^§^24.

to consult with a solicitor if there are reasonable grounds to believe that it would interfere with ⁵⁰
other investigations.
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^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^{0, s}^c^h.^{8 ¶}^8.
⁵¹^Mⁱ^r^and^{a v}^.^Ar^iz^on^a^,³⁸^{4 U}^.^S.⁴³⁶^{, 4}⁷⁹⁽¹⁹⁶⁶⁾^;^Dⁱ^c^k^e^r^s^{on v}^.^Uⁿ^ite^{d St}^ate^s^,⁵³^{0 U}^.^S.⁴^28,⁴^35-^{38 (}²⁰⁰⁰⁾^.
⁵²^D^a^vⁱ^s^v^.^Uⁿ^ite^{d St}^ate^s^,⁵¹^{2 U}^.^S^.⁴⁵²^{, 4}⁵⁸⁽¹⁹⁹⁴⁾^.
⁵³^U^.^S.Co^ns^{t. A}^m^e^{nd. I}^V^;^F.R.Cri^m^.P^{. 4}¹^;^Deven^p^{eck v.}^A^l^f^o^rd^,⁵⁴^{3 U}^.^S.¹^46,¹^{52 (}²⁰⁰⁴⁾^.
⁵⁴¹⁸^U^.^S^.^C^.³¹⁴⁴^;^Uⁿⁱ^t^e^d^State^s^v^.^Aw^ad^alla^h^,³⁴^{9 F}^.³^d⁴²^,⁶⁴⁽²^{d C}ⁱ^r^.²⁰⁰³⁾^;^Uni^t^e^d^S^t^at^{es v.}^Olⁱ^ver^{, 683}^F.^2d²^24,
²³¹⁽⁷^th^Cⁱ^r^.¹⁹⁸²⁾^.
⁵⁵^Uⁿ^ite^d^St^ate^s^v^.^Aw^a^dal^la^h^{, 34}^{9 F.3}^d⁴²^{, 59}⁽²^d^Cⁱ^r^.²⁰⁰³⁾^;^{In re DeJesu}^s^B^e^rri^o^s^{, 706}^F.^2d³⁵^5,³^{58 (}¹^st^Cⁱ^r^.¹⁹⁸³⁾
⁵⁶^F.R.Crim^{.P. 5}^.
⁵⁷^C^o^un^t^y^o^f^Rⁱ^versi^d^e^v.^McL^a^ug^hliⁿ^{, 50}⁰^U^.^S^.⁴⁴^{, 57 (}¹⁹⁹¹⁾^.
⁵⁸^Unⁱ^t^e^d^S^t^a^t^{es v.}^Rⁱ^vera^,³⁷^{0 F.}^3d⁷³^0,⁷³^{4 (}⁸^th^Cⁱ^r^.²⁰⁰⁴⁾^.
⁵⁹¹⁸^U^.^S^.^C^.³¹⁴²^.
⁶⁰¹⁸^U^.^S^.^C^.³¹⁴²⁽^a⁾^.
⁶¹¹⁸^U^.^S.C.³¹⁴⁴^(e),(f^),(g^).
⁶²¹⁸^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:
^T^h^{ere are cas}^esⁱⁿ^w^h^ich^w^e^re^m^aⁱⁿ^uⁿ^a^{ble to pros}^{ecute. How}^e^v^e^{r, th}^a^t^doesⁿ^o^t^m^e^aⁿ^t^h^at
^w^e^s^h^o^u^ld^d^oⁿ^o^thⁱⁿ^g^to^f^o^r^e^{stall s}^u^sp^ected^ter^r^o^r^{ists o}^r^to^p^r^ev^en^{t th}^e^m^f^r^o^m^p^l^aⁿⁿⁱⁿ^g^,
^as^sⁱ^s^ting^{or oth}^e^r^wⁱ^s^{e s}^u^pportin^g^th^os^e^w^illi^ng^{to carr}^y^ou^{t a}^ttack^s^.^T^h^{e Gov}^e^rⁿ^m^e^{nt h}^a^v^e
^th^eref^{ore decided to replace the part 4 po}^w^e^rs^[of^th^e^A^T^C^S^A]^wⁱ^th^aⁿ^e^w^s^y^s^t^e^m^of^coⁿ^t^rol
^orders^{. We i}ⁿ^t^eⁿ^d^t^h^at^su^ch^orders^{be capab}^{le o}^f^g^eⁿ^e^r^a^l^ap^p^licatioⁿ^to^aⁿ^y^s^u^sp^ected
^ter^r^o^rⁱ^{st ir}^r^e^sp^ectiv^{e o}^fⁿ^a^tioⁿ^a^lit^y^o^r^{, f}^o^r^m^o^s^t^coⁿ^t^r^o^{ls, o}^f^th^eⁿ^a^tu^r^e^o^f^th^{e ter}^r^o^r^{ist activ}^it^y
^[^w^h^e^th^erⁱⁿ^terⁿ^atioⁿ^a^{l o}^r^d^o^m^e^stic]^aⁿ^d^t^h^{at t}^h^e^y^s^h^o^u^ld^en^ab^{le u}^s^toⁱ^m^p^o^s^{e co}ⁿ^d^itioⁿ^s
^coⁿ^s^tr^ainⁱⁿ^g^t^h^{e ab}^ili^t^y^o^f^t^h^o^s^{e su}^b^j^{ect to}^t^h^{e o}^r^d^e^r^s^to^en^g^a^g^eⁱⁿ^ter^r^o^rⁱ^st-^r^elated^acti^v^itie^s.
^C^oⁿ^t^rol^orders^w^o^u^l^{d be}^u^s^e^d^on^l^yⁱⁿ^s^e^ri^ous^cas^e^s^{. T}^h^{e con}^t^rol^sⁱ^m^pos^ed^w^o^u^l^{d be}
^prop^ortion^a^{te to th}^{e th}^{reat th}^at^eachⁱⁿ^di^vⁱ^du^{al pos}^{ed. Su}^c^h^orders^w^o^u^l^{d be prev}^en^ti^v^e^an^d
^desⁱ^gn^{ed to dis}^r^u^p^{t th}^os^{e s}^eekⁱⁿ^g^{to carr}^y^ou^{t attacks}^[^w^h^e^t^h^e^r^h^e^{re or}^els^e^w^h^e^r^e^]^o^r^w^h^o^a^r^e
^pl^anⁿⁱ^ng^{or ot}^h^e^r^wⁱ^s^{e su}^pportⁱⁿ^g^su^c^h^actⁱ^vⁱ^tⁱ^e^s^.^T^h^e^y^w^o^u^l^d^{be d}^e^sⁱ^gⁿ^e^d^t^o^a^d^d^r^e^s^s^dⁱ^r^e^c^t^l^y⁶⁷
^t^w^{o of}^t^h^e^L^a^w^L^o^rds^’^con^cerⁿ^s^:^di^s^c^ri^mⁱⁿ^a^tⁱ^oⁿ^an^{d proport}ⁱ^on^alⁱ^t^y^.
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^Uⁿ^ite^d^St^ate^s^v^.^Aw^a^dal^la^h^,³⁴⁹^F.3^d⁴²^,^62-^{3 (}^{2d C}ⁱ^r^.²⁰⁰³⁾^.
⁶⁴⁴³⁰^P^AR^L^.^D^EB^{., H}^.^{C. (5}^th^{ser.) (2}⁰⁰⁵^{) 3}⁰⁷^av^ai^la^ble^at^htt^p^://w^ww^.^pub^lic^a^tio^ns.pa^r^lia^m^e^nt.uk^/^pa^/^c^m²⁰⁰⁴⁰^5/
^cm^ha^ns^r^d^/^c^m⁰⁵⁰¹²^6/^de^bte^x^t/50¹^26-^04.^htm^#50¹²^6-⁰⁴^s^p^mⁱ^{n0 (}^l^a^s^t^vⁱ^s^ite^{d Ma}^r^.^7,²⁰⁰⁵⁾^.^S^{ee a}^l^s^o^L^o^{rd Ca}^rlile^of
^B^e^r^rⁱ^ew^{, A}ⁿ^ti-^te^r^r^o^rⁱ^s^m^{, C}^rⁱ^m^e^and^Se^c^u^r^ity^A^c^{t 2001}^P^a^r^t^I^V^Se^c^tion²⁸^R^e^vⁱ^e^w^{2004, ¶}¹¹^av^aila^ble^at
^http:^//w^w^w^.hom^e^o^f^f^ic^e^.^g^o^v^.^uk^/^d^o^c^s⁴^/P^a^r^t^_^I^V^_Fe^b^_^05.^pdf⁽^l^a^s^{t v}ⁱ^s^ite^{d Ma}^r^.^7,²⁰⁰⁵⁾^.
⁶⁵^Id^.
⁶⁶⁴³⁰^P^AR^L^.^D^EB^{., H}^.^{C. (5}^th^s^e^r^.⁾⁽²⁰⁰⁵⁾³⁰⁷^.^T^h^e^g^o^v^e^rⁿ^m^e^{nt f}^o^c^u^s^e^{d its}^a^tteⁿ^tio^{n o}ⁿ^obtaⁱ^ning^Me^m^o^r^a^nda^of
^U^nde^r^s^ta^ndi^ng^w^{ith k}^e^y^Middle^E^a^s^t^e^r^{n a}^{nd N}^o^r^t^{h A}^f^rⁱ^c^aⁿ^c^ountrⁱ^e^s^.^S^{ee a}^l^so^{UK Pl}^aⁿ^t^o^Depo^{rt T}^e^rro^{r S}^u^s^p^ects^,
^BBC^N^EW^S^{, J}^a^{n. 19,}²⁰⁰⁵^,^av^ail^a^ble^at^htt^p^://^ne^w^s^.bbc^.c^o.uk^/¹^/^h^i/uk^/⁴¹⁸⁶⁴⁵^7.s^t^m⁽^l^a^s^{t v}ⁱ^s^ite^{d Fe}^b.^16,²⁰⁰⁵⁾^.
⁶⁷⁴³⁰^P^AR^L^.^D^EB^{., H}^.^{C. (5}^th^{ser.) (2}⁰⁰⁵^{) 3}⁰⁷^.
⁶⁸^P^r^e^v^eⁿ^tion^of^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^{5, 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^Se^c^tion¹⁽^{9) of}^the^P^r^e^v^eⁿ^ti^on^of^T^e^rroris^m^A^c^{t 2005}^{, c}^.²^de^fⁱ^ne^s^t^e^rroris^m^-re^la^t^e^{d a}^c^tiv^itie^s^a^s^“^one^{or m}^o^re^of^the
^f^o^llowⁱ^ng^{: (a}^{) the}^c^o^m^m^{ission, pr}^e^p^a^r^a^tion^{or i}ⁿ^stig^a^tion^of^a^c^t^{s of}^te^rrorism^{; (b) c}^ond^uc^{t w}^h^ic^{h f}^a^c^ilita^te^{s [}^o^{r g}ⁱ^v^e^s
^en^co^u^r^agemen^t^t^o^]^t^h^{e co}^mmⁱ^ssi^oⁿ^,^prep^aratⁱ^o^{n o}^rⁱⁿ^stⁱ^g^atⁱ^oⁿ^o^f^su^ch^act^s,^o^r^w^hⁱ^c^hⁱ^sⁱⁿ^t^e^nd^ed^t^o^do^so^;⁽^d^{) con}^d^u^c^t
^w^h^ic^{h g}ⁱ^v^e^s^s^uppor^t^or^a^s^sⁱ^s^t^aⁿ^c^e^{to i}^ndivⁱ^d^u^a^l^s^w^{ho a}^r^e^k^now^{n or}^be^lie^v^e^{d to}^be^inv^o^lv^e^dⁱⁿ^te^r^r^or^is^m^-^r^e^la^te^d
^a^c^tiv^it^y^.^”
⁷⁰^P^r^e^v^eⁿ^tion^of^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^{5, c}^.^{2, Ex}^p^l^aⁿ^a^t^or^y^N^o^te^s^¶^3.
⁷¹^Id^.,^§¹⁽²⁾^.
⁷²^Id^.,^c^.^2,^§^4.
⁷³^Id^.^,^c.²^,^§⁴^.^T^h^{e add}ⁱ^tⁱ^oⁿ^a^l^cri^t^e^ri^{a are t}^h^at^“t^h^e^ri^{sk ari}^s^{es o}^u^t^o^f^,^o^rⁱ^s^asso^ci^at^ed^wⁱ^t^h^,^a^p^u^b^lⁱ^c^emergen^c^yⁱⁿ
^r^e^s^p^e^c^t^of^w^h^ic^{h the}^r^e^is^a^de^sⁱ^gⁿ^a^t^e^d^de^r^o^g^a^tio^{n f}^r^om^the^w^hole^or^a^pa^r^t^of^A^r^tic^le^{5 of}^the^H^u^m^a^{n R}ⁱ^g^h^ts
^C^onv^eⁿ^tio^{n; a}^nd^the^o^b^lig^a^tio^ns^t^h^a^t^the^r^e^a^r^e^r^e^a^s^ona^ble^g^r^o^uⁿ^d^s^f^o^r^be^lie^vⁱ^ng^s^h^oul^d^be^im^pos^e^d^oⁿ^theⁱⁿ^divⁱ^dua^{l a}^r^e
^or^inc^l^ude^de^r^o^g^a^ting^o^b^lig^a^tio^ns^of^a^de^s^c^rⁱ^ption^s^e^{t o}^u^{t i}ⁿ^t^h^e^de^sⁱ^gⁿ^a^tion^or^de^r^.^”
⁷⁴^P^r^e^v^eⁿ^tion^of^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^{5, c}^.^2,^{§ 1(}⁴⁾^.
⁷⁵^P^r^e^v^eⁿ^tion^of^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^{5, c}^.^2,^{§ 2(}⁹⁾^.
⁷⁶^T^h^e²⁰⁰^{5 A}^c^{t pr}^ov^ide^s^t^h^a^t^S^p^e^cⁱ^a^l^A^d^v^o^c^a^t^e^s^,^w^{ho a}^r^e^{not r}^e^s^p^on^sⁱ^ble^to^the^pa^r^tie^s^of^the^c^a^s^e^,^m^a^y^be^a^ppointe^d
^{to r}^e^pr^e^s^eⁿ^{t t}^h^eⁱⁿ^te^r^e^s^t^s^of^theⁱⁿ^divⁱ^dua^l^na^m^e^{d in the}^or^de^r^.^P^r^e^v^eⁿ^tio^{n of}^T^e^r^r^o^rⁱ^s^m^A^c^{t 200}^{5, c}^.^{2, s}^c^h.^{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 courts.
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:
^T^h^{ere is}^a^wⁱ^de^s^p^read^mⁱ^s^c^on^c^e^ption^t^h^{at i}^f^w^e^co^u^l^{d on}^l^y^ad^du^{ce i}ⁿ^{tercept as}^ev^ideⁿ^ce,^w^e
^w^o^u^l^d^b^e^ab^{le to}^p^r^o^s^ecu^te^t^h^o^s^{e d}^e^tain^ed^{. Ho}^w^e^v^e^r^,^th^e^r^e^vⁱ^e^w^o^fⁱⁿ^ter^cep^{t a}^s^e^v^id^en^ce
^f^oun^{d n}^o^e^vⁱ^d^eⁿ^{ce t}^o^su^pport^t^hⁱ^s^{... [t}^h^e^{] Go}^v^e^rnm^eⁿ^t^{do n}^o^tⁱⁿ^t^eⁿ^d^t^o^c^h^ang^e^t^h^e^exⁱ^s^tⁱⁿ^g
^arran^g^e^m^eⁿ^t^s^.^In^{tercept prov}ⁱ^d^es^on^l^y^{part of}^t^h^{e i}ⁿ^telli^g^eⁿ^{ce ag}^aiⁿ^s^{t i}ⁿ^di^vⁱ^du^al^s^{... it does}
ⁿ^o^{t s}^t^aⁿ^{d alon}^{e. So}^m^e^of^t^h^e^{material th}^at^w^e^h^a^v^eⁱⁿ^t^h^es^{e ca}^s^e^s^isⁱⁿ^ad^mⁱ^s^s^{ible, an}^{d oth}^e^r
^m^a^terial,^w^hⁱ^l^{e techn}ⁱ^call^y^ad^mⁱ^s^s^{ible, cou}^l^{d n}^o^{t be addu}^ced^wⁱ^th^o^u^t^c^o^m^p^r^o^mⁱ^sⁱⁿ^gⁿ^a^tⁱ^oⁿ^a^l
^secu^rⁱ^t^y^{, d}^a^m^a^gⁱⁿ^g^r^e^latioⁿ^s^hⁱ^p^s^wⁱ^t^h^f^o^r^eⁱ^gⁿ^p^o^w^e^r^s^o^rⁱⁿ^tellig^en^{ce a}^g^en^cⁱ^{es, o}^r^p^u^ttin^g^th^e⁷⁹
^liv^es^o^f^s^o^u^r^ces^{at ri}^s^k^.
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^P^r^e^v^eⁿ^tion^of^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^{5, c}^.^2,^{§ 9}^.
⁷⁸^T^e^rro^r^L^a^{w Ro}^{w Exp}^l^ain^e^d^{, B}^B^C^N^EW^S^{, Ma}^{r. 12,}²⁰⁰⁵^av^aila^ble^at^h^ttp:^//ne^w^s.bbc^.c^o.^uk^/1/^h^i/^uk^_polit^ic^s/
⁴²⁸⁸⁴⁰⁷^.s^tm^..
⁷⁹⁴³⁰^P^AR^L^.^D^EB^{., H}^.^{C. (5}^th^{ser.) (2}⁰⁰⁵^{) 3}⁰⁷^.
⁸⁰^P^r^e^v^eⁿ^tion^of^T^e^r^r^o^rⁱ^sm^A^c^{t 200}^{5, c}^.^2,^{§ 1}³^.
⁸¹^I^d^{. § 14.}
⁸²^S^ecret^a^r^{y o}^f^S^t^a^t^{e f}^o^{r t}^h^{e Ho}^me^Dep^a^r^t^m^en^t^{v MB}^,^[2⁰⁰⁶^]^W^L^{R (D) 1}⁰⁴^(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:
^T^o^talitarⁱ^an^{states [}^t^h^a^t]^h^a^v^e^tr^ad^itioⁿ^a^ll^y^r^e^so^r^t^ed^to^h^o^u^s^e^d^e^ten^tioⁿ^{as a}^w^a^y^to^sileⁿ^ce
^dis^s^e^nt^wⁱ^t^h^ou^{t t}^h^{e bad pu}^blic^it^y^of^cri^mⁱⁿ^al^proceedin^gs^{, s}^o^creatin^g^a^f^o^r^m^o^f^ex^trale^g^al
^lⁱ^m^{bo t}^h^atⁱⁿ^di^cat^es^guⁱ^l^t^on^t^h^{e part}^of^a^su^s^p^ect^wⁱ^t^h^o^u^t^havⁱ^ng^t^o^g^o^t^o^t^h^{e t}^r^o^u^bl^{e of}
^obtainⁱ^ng^{a conv}^ictⁱ^on^{... Charles}^C^l^ar^k^e^h^a^s^argu^{ed t}^h^at^h^o^u^s^e^arres^t^is^pref^{erable to}⁸⁵
^deten^tionⁱⁿ^B^e^l^m^ars^h^{, bu}^{t t}^h^a^t^is^on^l^y^{a di}^ff^eren^{ce of}^circ^um^s^t^aⁿ^{ce, n}^o^{t of}^e^s^s^eⁿ^ce.
The Home Secretary has continued to reiterate the paradoxical challenge that the current situation
creates and has stated that he is striving to:
^Prot^ectⁿ^a^tⁱ^oⁿ^a^l^s^e^c^u^ri^t^y^an^{d e}ⁿ^su^{re t}^h^e^s^a^f^e^t^y^an^d^s^ecu^ri^t^y^of^t^hⁱ^s^coun^t^r^y^.^In^doi^ng^s^o^{, I}
ⁿ^{eed to con}^s^ider^h^o^w^w^e^balaⁿ^{ce th}^{e ri}^g^h^ts^o^fⁱⁿ^divⁱ^d^u^als^a^g^aⁱⁿ^s^t^th^o^s^{e of}^s^o^ciet^y^;^h^o^w^w^e
^en^s^u^r^e^saf^e^t^y^an^d^sec^u^rⁱ^t^y^wⁱ^thⁱⁿ^{a d}^e^m^o^cr^ac^y^w^ith^o^u^{t u}ⁿ^d^e^r^mⁱⁿⁱⁿ^g^t^h^{e v}^a^l^u^e^s^th^a^t^a^r^e^a^t^t^h^e⁸⁶
^v^e^r^y^h^ear^{t o}^f^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^Vik^r^a^m^D^{odd a}ⁿ^{d C}^a^r^l^eⁿ^e^B^a^ile^y^,^Te^r^r^o^r^Law^an^Affr^oⁿ^{t t}^o^J^u^s^tic^e^-^J^udge^:^C^o^ntr^o^{l O}^r^de^r^s^Br^e^a^c^h^H^u^m^an^Rig^h^ts^,
^G^UA^R^D^I^A^N⁽^L^ondo^{n) A}^p^{r. 1}⁸^,²⁰⁰⁶^{, a}^v^a^ila^ble^a^t^htt^p^://w^w^w^.g^ua^rdian.c^o^.^u^k^/^hum^aⁿ^rig^h^ts^/^s^tory^/⁰^,,1⁷⁵²⁸⁶^4,^00.^htm^l^.
⁸⁴^M^o^r^e^Sc^r^u^tiny^{of C}^ontr^o^{l O}^r^de^r^s^{, BBC}^N^EW^S^{, Ma}^y^{2, 200}^6,^av^ail^a^ble^at^htt^p^://^ne^w^s^.bbc^.c^o.uk^/²^/^h^i/uk^_ne^w^s^/
^polit^ic^s^/⁴⁹⁶⁵⁶⁷^2.s^t^m^.
⁸⁵^Ben^M^acIn^t^y^r^e,^Guilty^Until^Pro^v^eⁿ^Guiltie^r^{, T}^IM^ES⁽^L^ondoⁿ⁾^{, J}^aⁿ^.²⁹^{, 2}⁰⁰⁵^av^ail^able^at
^http:^//www^.tim^e^s^online^.^c^o^.^u^k^/^a^r^tic^le^/0,,1⁰⁶^8-1⁴⁶⁰⁷^67,⁰⁰^.htm^l.
⁸⁶⁴³⁰^P^AR^L^.^D^EB^{., H}^.^{C. (5}^th^{ser.) (2}⁰⁰⁵^{) 6}⁷⁹^.
⁸⁷^{18 U}^.^S.C^.³¹⁴²^-³¹⁴^4.
⁸⁸^{18 U}^.^S.C^.³⁵⁶¹^-³⁵⁶^6.
⁸⁹^F.R.Crim^{.P 4,}^5.
⁹⁰¹⁸^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^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^.
⁹²^P^o^lic^e^A^c^{t 199}^{7, c}^.⁵⁰^.
⁹³^Inte^llig^eⁿ^c^e^Se^rv^ic^e^s^A^c^{t 199}^{4, c}^.¹³^.
⁹⁴^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}⁷¹^{; R}^e^g^u^la^tⁱ^on^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s⁽^Iⁿ^te^r^c^e^p^tion^of
^C^o^m^m^unic^a^tions^{: C}^o^de^of^P^r^a^c^tic^e⁾^O^r^de^r²⁰⁰²^{, SI}²⁰⁰²^/16⁹³^;^aⁿ^d^the^R^e^g^u^la^tio^{n of}^Iⁿ^v^e^s^tig^a^t^or^y^Pow^e^r^s⁽^C^ov^e^r^t
^Surv^e^illa^nc^e^:^Code^of^P^r^a^c^tic^e⁾^Orde^{r 20}⁰²^{, SI}²⁰⁰²^/1⁹³^3.
⁹⁵^Kh^an^{v t}^h^{e UK}^[²⁰^00]^{6 E}^H^LR⁶⁵⁵⁵^;^Ma^l^oⁿ^e^{v t}^h^{e UK}^[¹⁹^84]^{7 EHR}^R¹⁴^.^S^{ee a}^l^s^o^R^IC^H^A^R^D^P^OWE^L^L^,^A^N
^I^NT^RODUC^T^I^{ON T}^O^T^H^E^RIP^A²⁰⁰⁰^{, P}^a^r^t^I^,^Ma^g^s^.^C^.^P^.^5.¹⁽⁹⁾⁽²⁰⁰¹⁾^.
⁹⁶^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^5.
⁹⁷^U^.^{S. C}^ons^t.^A^m^e^{nd. I}^V^;^F.R^.^C^rⁱ^m^.P^{. 4}¹^;^{18 U}^.^S.C^.³¹^03a^;⁵⁰^U^.^S^.^C^.¹⁸²¹^-¹⁸²^9.
⁹⁸^{18 U}^.^S.C^.²⁵¹⁰^-²⁵²^{0; 5}⁰^U^.^S.C^.¹⁸⁰^1-¹⁸^11.
⁹⁹^{18 U}^.^S.C^.²⁷⁰¹^-²⁷¹^2.
¹⁰⁰^{18 U}^.^S.C^.³¹²¹^-³¹²^{7; 5}⁰^U^.^S.C^.¹⁸⁴^1-¹⁸^46.
¹⁰¹¹⁸^U^.^S^.^C^.³⁴⁸⁶^;²¹^U.S^.^C^.⁸⁷⁶^;¹⁸^U.S^.^C^.²⁷⁰⁹^;¹⁵^U.^S.^C^.¹⁶⁸^1u;¹⁵^U.^S^.^C^.¹⁶⁸¹^v;¹²^U.^S^.^C^.³⁴¹⁴^;⁵⁰^U.S^.^C^.
⁴³⁶^{. Fe}^de^ra^{l g}^r^aⁿ^{d jur}ⁱ^e^s^eⁿ^joy^p^a^rtic^ula^r^ly^s^w^e^e^p^ing^inv^e^stig^a^tiv^e^a^u^th^ority^{; g}^r^a^{nd jurie}^s^ha^v^e^be^eⁿ^a^bolis^he^{d i}ⁿ^t^h^e
^U^K^;^s^e^e^g^e^ne^r^a^ll^y^,^C^R^S^R^e^por^{t 9}⁵^-¹¹³^5,^T^h^e^Fe^de^r^a^l^G^r^an^{d J}^u^r^y^,^b^y^Ch^arl^e^{s Do}^y^l^e.

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

¹⁰²⁵⁰^U^.^S.C.¹⁸⁰⁶^(k^{), 1}⁸²⁵^(k^{), 1}⁸⁰⁴^(a)(7^)(B),¹⁸²³⁽^a)(⁷^)(B);^Iⁿ^{re Sea}^l^ed^Ca^se^,³¹^{0 F}^.³^d⁷¹⁷^,⁷^35-³⁶^(F.I.S^{.Ct. Re}^v^.
²⁰⁰²⁾^.
¹⁰³^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^6.
¹⁰⁴^Id^.,^c^.²³^,^{§ 2}⁶⁽⁹⁾⁽^a⁾^.
¹⁰⁵^Id^.,^c^.²³^,^{§ 2}⁶^.
¹⁰⁶^Id^.,^c^.²³^,^{§ 2}⁶⁽⁷⁾^.
¹⁰⁷^Id^.^,^c.²³^,^§²⁶⁽²⁾^an^{d S}^t^andⁱⁿ^g^C^o^mmⁱ^t^t^{ee F}^,^M^a^r^.³⁰^,²⁰⁰⁰^,^¶²⁷^4.
¹⁰⁸^Inv^e^s^tig^a^t^or^y^Pow^e^rs^T^r^ibuna^{l, D}ⁱ^re^c^t^e^d^Surv^e^illa^nc^e^,^J^a^n.,²⁰⁰⁵^,^a^v^aila^ble^at^htt^p^://w^ww^.ipt-uk^.^c^o^m^/
^de^f^a^ult.a^s^p?^s^e^c^tionI^D⁼^1&^c^h^a^p^te^r⁼^2.5.
¹⁰⁹^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}⁸⁰^.
¹¹⁰^T^h^e^Code^of^P^r^a^c^tic^e^on^Cov^e^rt^Surv^e^illa^nc^e^,^P^u^rs^ua^nt^to^{§ 7}¹^of^the^Re^g^u^la^tion^of^Inv^e^stig^a^t^ory^P^o^w^e^r^s^A^c^{t 200}^0.
¹¹¹^Id^{. a}^t^¶^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
department; or
• 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
terrorism;
• the use of equipment is operationally feasible; and

¹¹²^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}²⁹⁽⁵⁾^.
¹¹³^T^h^e^{list of}^pe^{rsons w}^{ith a}^u^th^ority^{to issue}^a^w^a^rra^{nt f}^o^{r dire}^c^t^e^d^aⁿ^{d c}^o^v^e^{rt h}^u^m^a^{n surv}^e^illa^nc^e^{is e}^x^te^nsiv^e^a^nd
^c^ontaⁱ^ne^dⁱⁿ^the^R^e^g^u^la^ti^on^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 2000}^{, c}^.²³^{, §}^§^28-^{30 a}^nd^the^P^r^e^s^c^r^iptⁱ^oⁿ^o^f^Of^fⁱ^c^e^s^{, R}^a^nk^s
^a^nd^P^r^ov^{isions Or}^de^{r 2}⁰⁰⁰^,^{SI 2}⁰^00/²⁴^17.^L^o^c^a^l^a^u^th^oritie^s^aⁿ^d^c^e^r^ta^{in ot}^he^{r a}^u^t^hori^tie^{s m}^a^y^now^u^s^e^only^the^pow^e^r^s
^f^o^{r c}^o^v^e^{rt hum}^aⁿ^surv^e^illa^nc^e^to^pre^v^eⁿ^{t or}^de^te^c^t^c^r^im^e^or^disorde^r^{. Ma}^ny^a^u^thorit^ie^{s c}^l^aⁱ^m^tha^t^{this re}^stric^tion^ha^s
^ren^d^e^red^t^h^{e p}^o^w^e^{rs o}^b^s^o^l^{ete b}^ecau^{se th}^ey^canⁿ^o^loⁿ^g^{er au}^th^o^r^{ize co}^v^e^{rt activ}^{ities in}^{areas th}^{at are w}^ithⁱⁿ^th^{eir rem}^it.
^Re^g^u^la^tion^of^Inv^e^stig^a^t^or^y^P^o^w^e^{rs (Dire}^c^t^e^d^Surv^e^illa^nc^e^a^{nd C}^o^v^e^{rt Hum}^a^{n Inte}^llig^eⁿ^c^e^Sourc^e^s⁾^Orde^{r, S.I.}
²⁰⁰^3/³¹^71.^S^{ee a}^l^s^o^O^FF^IC^{E O}^F^S^URVE^I^L^L^ANCE^C^OM^M^I^S^S^I^ONE^R^S^,^A^NNU^AL^R^EP^O^R^T^,²⁰⁰⁵^-^6,^H.^C^.¹²⁹⁸^.
¹¹⁴^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^§^28-^29.
¹¹⁵^Id^.,^c^.²³^,^{§ 4}³^.
¹¹⁶^Ho^m^e^O^f^fⁱ^ce,^G^uⁱ^d^elⁱⁿ^{es o}^f¹⁹⁸⁴^,^referred^toⁱⁿ^P^e^{rry v t}^h^{e UK}^[²⁰⁰³^]^C^r^im^L^R^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
operation.
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^P^e^{rry v t}^h^{e UK}^[²⁰⁰³^]^C^r^im^LR²⁸^{1, ¶}^¶²⁴⁽^r^e^f^e^r^rⁱ^ng^{to H}^o^m^e^O^f^fⁱ^ce^{, G}^u^ide^line^s^of¹⁹⁸⁴⁾^.
¹¹⁸^S^{ee f}^o^{r exa}^m^p^l^e^P^RI^VA^CY^I^NT^E^R^N^A^T^I^ON^AL^av^ailable^at^http^://w^ww^.^p^riv^a^c^y^inte^rna^tiona^l.^org^(la^s^{t v}ⁱ^site^{d Se}^pt.^7,
²⁰⁰⁶⁾^.
¹¹⁹^Ho^m^e^O^f^fⁱ^ce,^G^uⁱ^d^elⁱⁿ^{es o}^f¹⁹⁸⁴^,^referred^toⁱⁿ^P^e^{rry v t}^h^{e UK}^[²⁰⁰³^]^C^r^im^L^R^281,^¶^¶²³^-⁴^.
¹²⁰^T^h^{e i}ⁿ^f^o^rmatⁱ^oⁿ^co^l^l^ect^ed^b^y^CCT^V^ca^m^e^{ras i}^s^t^y^pⁱ^cal^l^y^su^b^j^ect^t^o^t^h^{e p}^r^o^vⁱ^sⁱ^oⁿ^s^o^f^t^h^{e Dat}^a^P^r^ot^ectⁱ^o^{n A}^c^t¹⁹⁹⁸
^a^{nd m}^u^{st, the}^r^e^f^ore^,^be^pr^oc^e^sse^{d in c}^o^m^p^lia^nc^e^w^{ith this A}^c^t.
¹²¹^P^e^{rry v t}^h^{e UK}^[2⁰⁰³^]^Crim^L^R²⁸¹^{, ¶}³⁸^(ref^e^rrin^g^to^Rot^a^r^u^v^.^R^o^m^ani^a^[^G^C^]^,ⁿ^o^{. 28}³⁴^1/9⁵^{, §§ 4}³^-⁴^4,^EC^H^R
²⁰⁰^0-^{V, a}^nd^Am^an^{n v}^.^Sw^itz^e^r^laⁿ^d^[^G^C]^,ⁿ^o^.²⁷⁷⁹⁸^/⁹⁵^,^§^§⁶⁵^-6⁷^,^{ECHR 2}⁰⁰⁰^-II)^.
¹²²^P^{eck v t}^h^{e UK}⁽ⁿ^o^.⁴⁴⁶⁴⁷^/⁹⁸⁾^,^j^u^dg^m^e^{nt of}^{28 J}^aⁿ^u^a^r^y²⁰⁰³^{, EC}^H^R²⁰^{03 a}^nd^P^.^G.^aⁿ^d^J.^H.^{v t}^h^{e U}^K^{, no}^.
⁴⁴⁷⁸⁷^/9^{8, §}⁵⁶^{, EC}^H^R²⁰⁰¹^-^I^X^.
¹²³^P^.^G.^aⁿ^d^J.^H.^{v t}^h^{e UK}^,ⁿ^o^{. 44}⁷⁸^7/9⁸^{, §}⁵⁶^{, ECH}^R²⁰⁰¹^-IX^.
¹²⁴¹⁸^U^.^S.C.²⁵¹¹⁽²^)(c),(^d^);^Uⁿ^ite^d^State^s^v^.^W^hⁱ^t^e^{, 4}⁰¹^U^.^S.⁷⁴^{5 (}¹⁹⁷¹⁾^.
¹²⁵^Uⁿ^ite^d^St^ate^s^v^.^K^a^tz^,³^{89 U}^.^S.³^47,³⁶^{1 (}¹⁹⁶⁷⁾^;^Uⁿ^ite^{d St}^ate^s^v^.^J^a^c^k^s^on^,²¹^{3 F.}^3d¹²⁶⁹^,¹²^80-²⁸¹⁽¹⁰^th^Cⁱ^r^.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;
and
• 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^.^T^a^tum^,⁴^{08 U}^.^S.^1,^{9 (}¹⁹⁷²⁾^.
¹²⁷^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}³²^.
¹²⁸^Id^.,^c^.²³^,^{§ 3}²^{; a}^{nd t}^h^e^Re^g^u^la^tio^{n of}^Inv^e^stig^a^t^ory^P^o^w^e^{rs (Intrusi}^v^e^Surv^e^illa^nc^e⁾^Orde^{r 20}^03,^SI²⁰⁰³^/3¹⁷^4.
¹²⁹^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}³²^.
¹³⁰^Id^.,^c^.²³^,^{§ 4}¹^.
¹³¹^Id^.
¹³²^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}⁴⁴^.
¹³³^C^a^lif^orⁿⁱ^{a v}^.^Cⁱ^r^aol^o^,⁴⁷^{6 U}^.^S^.²^07,²¹^{3 (}¹⁹⁸⁶⁾^;^Miⁿⁿ^e^sot^a^v.^C^a^r^t^er^{, 52}^{5 U}^.^S^.⁸³^,^88-⁹¹⁽¹⁹⁹⁸⁾^;^Uⁿ^ite^{d Sta}^t^e^s^v^.
⁽^c^onti^nue^d.^..)

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
civil proceedings.
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
dismissed.

^(...c^on^tin^ue^d)
^C^o^ro^na^-^C^ha^vez^,³²⁸^F^.^3d⁹⁷^4,⁹⁸⁰⁽⁸^th^Cⁱ^r^.²⁰⁰³⁾^.
¹³⁴^Uⁿ^ite^d^St^ate^s^v^.^K^y^llo^,⁵^{33 U}^.^S.^27,⁴⁰⁽²⁰⁰¹⁾^.
¹³⁵^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}³⁶^{. F}^o^r^f^u^r^t^he^r^inf^o^r^m^a^{tion a}^b^o^u^{t t}^h^e^s^u^r^v^e^ill^aⁿ^c^e
^co^mmⁱ^ssioⁿ^e^r,^se^e^infra^,^un^d^e^{r s}^u^b^h^eadⁱⁿ^{g “safegu}^a^rd^s.^”
¹³⁶^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}³⁷^.
¹³⁷^Id^.
¹³⁸^Id^.
¹³⁹^Id^.
¹⁴⁰^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}³⁸^.
¹⁴¹^O^FFIC^E^O^F^S^URVE^I^L^L^ANC^E^COM^M^I^S^S^I^O^N^E^R^S^,^A^NNU^AL^R^EP^O^R^T^,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
communication;
• 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
personal;
• 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^Se^c^tion²^of^the^R^e^g^u^la^tio^{n of}^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 2000}^{, c}^.²³^de^fⁱ^ne^s^theⁱⁿ^te^r^c^e^p^tioⁿ^of^c^o^m^m^unic^a^tions^a^s
^w^h^en^,ⁱⁿ^t^h^{e co}^u^r^se^o^f^t^h^{e co}^mm^uⁿⁱ^catⁱ^oⁿ^s^t^r^an^smⁱ^ssi^{on by}^a^te^le^c^o^m^m^unic^a^tions^s^y^s^t^em^{, a}^pe^r^s^{on m}^odifⁱ^e^s^or
^inte^rf^e^r^e^s^w^{ith the}^sy^ste^m^{or its o}^p^e^r^a^tion;^m^onitors^tr^aⁿ^s^m^is^sⁱ^ons^m^a^de^by^the^te^le^c^o^m^m^unic^a^tions^sy^s^t^em^{; or}
^m^onitor^s^tr^aⁿ^s^m^is^sⁱ^ons^by^wⁱ^r^e^le^ss^te^le^g^r^a^phy^{to or}^f^r^om^a^ppa^r^a^tus^c^ontaⁱ^ne^dⁱⁿ^the^te^le^c^o^m^m^unic^a^tions^s^y^s^t^em^,
^re^sulting^m^a^kⁱ^ng^so^m^e^{or a}^{ll f}^o^the^c^onteⁿ^ts^of^the^c^o^m^m^unic^a^tion^a^v^a^ila^ble^during^t^h^e^traⁿ^sm^ission^{to a}^pe^rsoⁿ^othe^r
^thaⁿ^t^h^e^s^e^nde^r^or^t^h^e^inte^nde^d^r^e^cⁱ^pieⁿ^t^of^the^c^o^m^m^unic^a^tion.
¹⁴³^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^1.
¹⁴⁴^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^{4 a}^{nd T}^h^e^T^e^lec^o^m^m^unic^a^tions⁽^L^aw^f^u^{l B}^u^sⁱ^ne^s^s^P^r^a^c^tic^e⁾
⁽^Iⁿ^te^r^c^e^p^tio^{n of}^C^o^m^m^unic^a^tions⁾^R^e^g^u^la^tions²⁰^00,^SI²⁶^99/²⁰⁰⁰^.
¹⁴⁵^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^§^{1 a}ⁿ^{d 4}^.
¹⁴⁶^U^.^S.C^o^ns^{t. A}^m^e^{nd. I}^V^;^Uⁿ^ite^d^St^ate^s^v^.^K^a^tz^,³^{89 U}^.^S.³⁴^{7 (}¹⁹⁶⁷⁾^;^Uⁿ^ite^d^St^ate^s^v^.^Uⁿ^ite^{d St}^ate^s^Dⁱ^s^t^rⁱ^c^t^C^our^t^,
⁴⁰⁷^U^.^S.²^{97 (}¹⁹⁷²⁾^{; 1}⁸^U^.^S^.^C^.²⁵¹¹^{; 5}⁰^U^.^S.C^.¹⁸^09.
¹⁴⁷¹⁸^U^.^S.C.²⁵¹⁰^-2⁵²⁰^(o^rⁱ^gⁱⁿ^a^lly^eⁿ^a^c^t^e^d^a^s^T^itle^{III o}^f^th^e^Omⁿⁱ^b^u^s^Crim^e^Coⁿ^t^ro^{l a}ⁿ^d^Sa^f^e^Stre^e^t^{s A}^c^{t o}^f¹⁹⁶⁸⁾^.
¹⁴⁸^{50 U}^.^S.C^.¹⁸⁰¹^-¹⁸¹^1.

• 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
communication;
• 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
communication; or
• 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

¹⁴⁹¹⁸^U^.^S.C.²⁵¹¹⁽²^)(c),(^d^);^Uⁿ^ite^d^State^s^v^.^W^hⁱ^t^e^{, 4}⁰¹^U^.^S.⁷⁴^{5 (}¹⁹⁷¹⁾^.
¹⁵⁰¹⁸^U^.^S.C.²⁵¹¹⁽²^)(a)(I).
¹⁵¹¹⁸^U^.^S.C.²⁵¹⁰⁽⁵^)(a).
¹⁵²¹⁸^U^.^S^.^C^.²⁵¹⁰⁽²⁾^.
¹⁵³¹⁸^U^.^S^.^C^.²⁵¹⁸⁽⁷⁾^.
¹⁵⁴^Ne^ith^e^r^T^itle^{III n}^o^{r FISA}^a^p^p^lie^{s to}ⁱⁿ^te^rc^e^p^tioⁿ^s^o^c^c^u^rriⁿ^g^o^u^tsid^e^o^f^th^e^Un^ite^d^Sta^t^e^s^,^Uⁿ^ite^{d S}^t^at^e^s^v^.
^Tos^c^ani^no^{, 5}⁰⁰^F.^2d²⁶^7,²⁷^{9 (}²^d^Cⁱ^r^.¹⁹⁷⁴⁾^;^Uⁿ^ite^d^St^ate^s^v^.^Bi^{n L}^adeⁿ^,¹^{26 F.S}^u^p^p^.2^{d 26}^{4, 27}²⁽^S^.^D^.N^.Y^.²⁰⁰⁰⁾^.
^T^h^e^Four^t^h^A^m^e^ndm^eⁿ^{t doe}^s^not^a^pply^w^h^e^r^e^the^r^e^is^no^jus^tif^ia^ble^e^x^pe^c^t^a^{tion of}^pr^iv^a^c^y^,^Sm^{ith v}^.^M^a^r^y^land^,⁴⁴²
^U.^S^.⁷³^5,⁷⁴¹^-⁴⁶⁽¹⁹⁷⁹⁾^.^No^r^do^{es i}^t^ap^p^l^y^t^o^t^h^{e o}^v^{erseas search}^es^an^d^sei^z^u^r^{es b}^y^Unⁱ^t^e^d^S^t^at^{es agen}^t^s^o^f^f^o^rei^gⁿ
^pr^o^p^e^r^ty^,^Uⁿ^ite^{d St}^ate^s^v^.^Ve^r^d^u^g^o^-^U^r^qui^de^z^,⁴⁹^{4 U.}^S^.²⁵⁹⁽¹⁹⁹¹⁾^.^It^do^{es ap}^p^l^y^t^o^t^h^{e o}^v^{erseas sear}^ch^{es an}^d^sei^z^u^r^es,
^a^ttributa^b^le^to^a^g^eⁿ^{ts of}^the^Unite^{d Sta}^t^e^s^,^of^the^pro^p^e^r^ty^of^Am^e^rⁱ^c^aⁿ^{s e}^x^hibiting^a^j^u^stif^ia^ble^e^x^pe^c^t^a^tion^of^priv^a^c^y^th
^w^{ith re}^spe^c^t^{to the}^pro^p^e^r^ty^,^Uⁿ^ite^{d St}^ate^s^v^.^J^u^d^a^{, 46}^F.^{3d 96}^{1, 96}⁸⁽⁹^Cⁱ^r^.¹⁹⁹⁵⁾^.
¹⁵⁵⁵⁰^U^.^S^.^C^.¹⁸⁰⁹^.
¹⁵⁶⁵⁰^U^.^S^.^C^.¹⁸⁰²^.
¹⁵⁷⁵⁰^U^.^S^.^C^.¹⁸⁰⁵⁽^f⁾^.
¹⁵⁸⁵⁰^U^.^S^.^C^.¹⁸⁰¹⁽^f⁾^.
¹⁵⁹^Uⁿ^ite^d^St^ate^s^v^.^Bin^L^adeⁿ^{, 12}⁶^F^.^S^u^p^p^.²^d²⁶^4,²⁷^{2 (}^S^.^D^.^N^.^Y^{. 200}⁰⁾^.

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

^(...c^on^tin^ue^d)
¹⁶⁰^{2 C}^URRE^NT^L^AW^S^TA^T^U^TES²⁰⁰⁰^(Ch^rⁱ^s^tⁱⁿ^{e Beesl}^e^y^et^al^ed^s.^,²⁰⁰⁰^).^S^{ee a}^l^so^I^NT^E^RCE^P^T^I^{ON O}^F^C^O^M^M^UNI^CAT^I^ONS
^IN^T^H^E^UK,¹⁹^99,^C^m^{. 436}^{8 a}^t²⁰^a^{nd 6}¹³^P^AR^L^.^D^EB^{., (H}^.L^{.) (5}^th^s^e^r^.⁾¹⁴^87.
¹⁶¹^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^6.
¹⁶²^H^o^m^e^Of^fⁱ^c^e^,^Iⁿ^te^r^c^e^p^tion^of^C^o^m^m^unic^a^tions^C^ode^of^P^r^a^c^tic^e^,^¶^2.2^.
¹⁶³^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^7.
¹⁶⁴^H^o^m^e^Of^fⁱ^c^e^,^Iⁿ^te^r^c^e^p^tion^of^C^o^m^m^unic^a^tions^C^ode^of^P^r^a^c^tic^e^,^¶^2.5^.
¹⁶⁵¹⁸^U^.^S.C.²⁵¹⁶^,²⁵¹⁸^.^T^itle^{III a}^l^so^a^u^th^o^r^iz^e^s^sta^t^e^c^o^u^r^t^ju^d^g^e^s^to^issu^eⁱⁿ^te^rc^e^p^ti^oⁿ^o^r^d^e^{rs u}^p^oⁿ^th^e^a^p^p^lic^a^tioⁿ^o^f
^senⁱ^o^r^st^at^{e l}^a^w^en^f^o^rce^m^en^t^o^f^fⁱ^cⁱ^al^{s w}^h^en^e^m^p^o^w^ered^t^o^d^o^s^o^und^{er a st}^at^{e l}^a^w^w^h^o^s^{e req}^uⁱ^rem^eⁿ^t^{s are at}^l^east^as
^d^e^m^aⁿ^dⁱⁿ^g^a^s^th^o^s^e^o^f^T^itle^{III, 1}⁸^U.S.C^.²⁵¹⁶^.
¹⁶⁶^{50 U}^.^S.C^.¹⁸⁰³^,¹⁸^04.
¹⁶⁷¹⁸^U^.^S^.^C^.²⁵¹⁸⁽⁷⁾^.
¹⁶⁸⁵⁰^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
that:
• 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
dangerous; and
• 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
officer;

¹⁶⁹^{18 U}^.^S.C^.²⁵¹⁸⁽¹¹⁾^;^{50 U}^.^S.C^.¹⁸⁰⁵^.
¹⁷⁰^D^e^te^c^ting^c^rⁱ^m^e^is^inte^r^p^r^e^te^{d i}ⁿ^s^e^c^{tion 8}¹⁽⁵⁾^of^the^R^I^P^A^a^s^“^e^s^t^a^blis^hing^by^w^hom^,^f^o^r^w^h^a^t^pur^p^o^s^e^{, by}^w^h^a^t
^mean^{s an}^d^gen^e^ral^l^yⁱⁿ^w^h^at^ci^rc^u^m^st^an^{ces an}^y^cri^m^e^w^a^{s co}^mmⁱ^t^t^e^d^;^an^{d t}^h^{e a}^p^p^r^eh^en^si^oⁿ^o^f^t^h^e^persoⁿ^b^y^w^h^o^m
^aⁿ^y^c^rⁱ^m^e^w^a^{s c}^o^m^m^itte^d.”
¹⁷¹^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}^5.
¹⁷²¹⁸^U^.^S.C.²⁵¹⁸⁽³^)(a).
¹⁷³^{18 U}^.^S.C^.²⁵¹⁸⁽³⁾⁽^b)^.
¹⁷⁴¹⁸^U^.^S.C.²⁵¹⁸⁽³^)(c).
¹⁷⁵^{18 U}^.^S.C^.²⁵¹⁸⁽³⁾⁽^d)^.
¹⁷⁶⁵⁰^U^.^S.C.¹⁸⁰⁵^(a)(1^).
¹⁷⁷⁵⁰^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:
^Dⁱ^s^c^l^o^su^{re of}^t^h^e^f^act^of^aⁿⁱⁿ^t^e^rceptⁱ^oⁿ^w^a^rran^t^t^o^anyon^{e bei}ⁿ^gⁱⁿ^t^e^rcept^e^d^w^o^u^l^d
^f^uⁿ^d^a^m^en^ta^ll^y^uⁿ^d^er^mⁱⁿ^e^it^s^eff^ectiv^eⁿ^e^s^s^{... Secrecy}^eⁿ^ables^l^a^w^eⁿ^f^o^r^c^em^en^t^a^g^en^cⁱ^es^aⁿ^d
^th^{e i}ⁿ^telli^g^eⁿ^{ce a}^g^eⁿ^cies^{to be}^s^t^ens^u^{re protection}^of^t^h^{e public in}^a^wⁱ^{de rang}^{e of}^cas^e^s^.
^Ho^w^e^v^e^{r, th}^{e is}^s^u^{e an}^{d ex}^ec^u^t^ion^ofⁱⁿ^terception^w^a^rran^t^s^is^ov^ers^een^b^y^t^h^{e i}ⁿ^depen^d^en^t¹⁸⁶
^Iⁿ^ter^cep^tioⁿ^o^f^Co^m^m^uⁿ^icatioⁿ^s^Co^m^mⁱ^s^s^ioⁿ^e^r^.
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

¹⁷⁸⁵⁰^U^.^S.C.¹⁸⁰⁵^(a)(3^)(A^{), 1}⁸⁰¹⁽^a⁾^{, (b}^).
¹⁷⁹⁵⁰^U^.^S.C.¹⁸⁰⁵^(a)(3^)(B).
¹⁸⁰⁵⁰^U^.^S.C.¹⁸⁰⁵^(a)(4^).
¹⁸¹⁵⁰^U^.^S.C.¹⁸⁰⁵^(a)(5^).
¹⁸²^H^o^m^e^Of^fⁱ^c^e^,^Iⁿ^te^r^c^e^p^tion^of^C^o^m^m^unic^a^tions^{, C}^ode^of^Pr^a^c^tic^e^,^¶^2.^11.
¹⁸³^Id^.^{, ¶}^2.¹²^.
¹⁸⁴¹⁸^U^.^S^.^C^.²⁵¹⁸⁽⁵⁾^.
¹⁸⁵⁵⁰^U^.^S^.^C^.¹⁸⁰⁵⁽^e⁾^.
¹⁸⁶^Ho^m^e^O^f^fⁱ^ce,^H^o^m^e^Se^c^r^e^t^ar^y^C^har^le^s^C^l^ar^k^e^’^s^Le^tte^r^to^Sim^{on C}^a^r^r^{of t}^h^e^Iⁿ^de^peⁿ^d^eⁿ^t^{, 20}⁰⁶^,^av^a^ilable^at
^h^t^t^p^:^/^/^p^ress.^ho^m^e^o^f^fⁱ^c^e^.^g^o^v^.^u^k/^S^p^eech^es/^h^s-l^e^t^t^e^r-si^m^oⁿ^-^carr?ver^sⁱ^oⁿ⁼¹^.
¹⁸⁷^{18 U}^.^S.C^.²⁵¹⁸⁽⁸⁾⁽^d)^.

government intends to enter the results of the interception into evidence in a judicial or ¹⁸⁸
administrative proceeding.
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
circumstances.
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

¹⁸⁸⁵⁰^U^.^S^.^C^.¹⁸⁰⁶⁽^c⁾^.
¹⁸⁹^H^o^m^e^Of^fⁱ^c^e^,^Iⁿ^te^r^c^e^p^tion^of^C^o^m^m^unic^a^tions^C^ode^of^P^r^a^c^tic^e^,^¶^3.6^.
¹⁹⁰¹⁸^U^.^S^.^C^.²⁵¹⁷⁽⁴⁾^;⁵⁰^U.^S^.^C^.¹⁸⁰⁶⁽^a)^.
¹⁹¹^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}¹⁵^.
¹⁹²^Ho^m^e^O^f^fⁱ^ce,^U^s^e^{of C}^o^m^m^unic^a^tio^ns^Iⁿ^te^r^c^e^p^{t as}^Evⁱ^d^eⁿ^c^e^,^av^ai^lable^at^http^://se^c^u^rity^.hom^e^o^ff^ic^e^.^g^o^v^.^uk^/
^surv^e^illa^nc^e^/inte^rc^e^p^tio^n/^c^o^m^m^uⁿ^ic^a^tions-i^nte^r^c^e^p^{t/ (la}^s^{t v}ⁱ^site^d^S^e^{pt. 1}^,²⁰⁰⁶^).
¹⁹³^H^o^m^e^Of^fⁱ^c^e^,^Iⁿ^te^r^c^e^p^tion^of^C^o^m^m^unic^a^tions^C^ode^of^P^r^a^c^tic^e^,^¶^6.4^.
¹⁹⁴^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}¹⁵^aⁿ^{d t}^h^e^H^o^m^e^Of^fⁱ^ce^{, I}ⁿ^te^r^c^e^p^tio^{n of}^C^o^m^m^unic^a^tions
^C^ode^of^P^r^a^c^tic^e^,^¶⁶^.^8.
¹⁹⁵¹⁸^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

¹⁹⁶¹⁸^U^.^S.C.²⁵¹⁷⁽¹^),⁽⁶^).
¹⁹⁷⁵⁰^U^.^S^.^C^.¹⁸⁰⁶⁽^a⁾^,¹⁸⁰¹⁽^h⁾^;^Iⁿ^r^e^Se^ale^d^C^a^s^e^,³¹^{0 F}^.³^d⁷¹⁷^,⁷^28-³⁴⁽^F^.^I^.^S^.^C^t^.^R^e^v.²⁰⁰²⁾^.
¹⁹⁸^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}⁵⁹⁽¹^-²⁾^.
¹⁹⁹^{18 U}^.^S.C^.²⁵¹⁹^{; 5}⁰^U^.^S.C^.¹⁸⁰⁷^,¹⁸^08.
²⁰⁰^P^o^lic^e^A^c^{t 199}^{7, c}^.⁵⁰^,^{§ 9}³^.
²⁰¹^Id^.
²⁰²^S^ectⁱ^o^{n 93}^o^f^t^h^e^P^o^lⁱ^{ce A}^c^t¹⁹⁹⁷^,^c.⁵⁰^d^e^fⁱⁿ^e^{s cri}^m^{e as seri}^o^u^s^w^h^enⁱ^t^“iⁿ^v^o^l^{ves t}^h^{e u}^s^e^o^f^vi^o^l^en^ce,^resu^l^t^sⁱⁿ
^s^ubs^ta^ntia^{l f}ⁱ^na^nc^ia^{l g}^aⁱⁿ^or^is^c^o^nduc^t^by^a^la^r^g^e^num^be^r^of^pe^r^s^onsⁱⁿ^pur^s^u^it^of^a^c^o^m^m^{on pur}^p^o^s^e^{, or}^t^h^e^of^f^e^ns^e^or
^one^of^the^of^f^e^ns^es^is^aⁿ^of^f^e^ns^e^f^o^r^w^h^ic^{h a}^pe^r^s^oⁿ^w^ho^ha^s^a^tta^ine^d^the^a^g^e^of^tw^eⁿ^t^y^-^one^a^nd^ha^s^h^a^{d no}^pr^e^v^io^us
^c^onv^ic^tions^c^oul^{d r}^e^a^s^ona^bly^be^e^x^pe^c^t^e^d^{to be}^s^eⁿ^t^eⁿ^c^e^d^t^o^im^pr^is^onm^eⁿ^{t f}^o^r^a^te^r^m^o^f^thr^e^e^y^e^a^r^s^o^r^m^o^r^e^.”
²⁰³^P^o^lic^e^A^c^{t 199}^{7, c}^.⁵⁰^,^{§ 9}³^.

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

²⁰⁴^Id^.
²⁰⁵^Id^.,^c^.⁵⁰^,^{§ 9}⁵^.
²⁰⁶^Id^.,^c^.⁵⁰^,^{§ 9}⁷^.
²⁰⁷^Id^.,^c^.⁵⁰^,^§§⁹⁷^aⁿ^d⁹¹^.
²⁰⁸^Id^.
²⁰⁹^T^h^{e o}^t^h^e^r^b^o^dⁱ^{es are:}^an^y^{UK p}^o^lⁱ^{ce f}^o^rce,ⁱⁿ^cl^u^dⁱⁿ^g^P^S^N^{I and}^t^h^e^p^o^lⁱ^{ce f}^o^{rces o}^f^HM^F^o^rces;^t^h^e^S^O^CA^;^Her
^Ma^je^st^y^’^{s Custom}^{s a}^{nd Ex}^cⁱ^se^{; a}ⁿ^y^of^the^inte^llig^eⁿ^c^e^se^rv^ic^e^s^{(MI5, MI}^{6, G}^C^{HQ); the}^Mi^nistry^of^De^fe^nc^e^P^o^lⁱ^c^e^;^or
^{British T}^r^aⁿ^sport^P^o^lic^e^.
²¹⁰^{18 U}^.^S.C^.²⁵¹⁰^-²⁵²^0.
²¹¹¹⁸^U^.^S^.^C^.²⁵¹⁶^.
²¹²¹⁸^U^.^S^.^C^.²⁵¹⁸⁽⁵⁾^.
²¹³^{18 U}^.^S.C^.²⁵¹⁸⁽⁸⁾⁽^d)^.
²¹⁴^Inte^llig^eⁿ^c^e^Se^rv^ic^e^Ac^{t 199}^{4, c}^.^13,^§^5.
²¹⁵^Iⁿ^v^e^s^tig^a^t^or^y^Pow^e^r^s^T^r^ibuna^l,^Iⁿ^t^e^rf^eren^{ce wi}^t^h^P^r^op^ert^y^{, J}^a^n.²⁰⁰⁵^,^av^ail^able^at^http^://www^.ipt-uk^.^c^o^m^/
^de^f^a^ult.a^s^p?^s^e^c^tionI^D⁼^1&^c^h^a^p^te^r⁼^3.

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^Inte^llig^eⁿ^c^e^Se^rv^ic^e^Ac^{t 199}^{4, c}^.^13,^§^5.
²¹⁷^Se^c^u^r^ity^Se^r^v^ic^es^A^c^{t 198}^{9, c}^.^5,^{§ 2(}²⁾⁽^a⁾^.
²¹⁸^Inte^llig^eⁿ^c^e^Se^rv^ic^e^s^A^c^{t 199}^{4, c}^.¹³^{, §}^6.
²¹⁹^Inte^llig^eⁿ^c^e^Se^rv^ic^e^s^A^c^{t 199}^{4, c}^.¹³^{, §}^9.
²²⁰^{50 U}^.^S.C^.¹⁸⁰¹^-¹⁸¹^1.
²²¹⁵⁰^U^.^S^.^C^.¹⁸⁰⁵⁽^e⁾^.
²²²⁵⁰^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
if:
• 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
issued.
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}ⁿ^o^{t f}^o^{r th}^{e carr}^yⁱⁿ^g^ov^{er of}^po^w^e^rs^,^w^h^ich^{are un}^h^a^ppil^yⁿ^ece^s^s^a^r^yⁱⁿ^t^h^{e con}^t^{ext of}
ⁿ^a^tioⁿ^a^l^sec^u^rⁱ^t^y^{, i}ⁿ^to^{a p}^o^licin^g^f^uⁿ^c^tioⁿ^eⁿ^ab^lin^g^a^m^e^m^b^e^r^o^f^th^{e Ex}^ec^u^tⁱ^v^{e to}^saⁿ^c^tioⁿ
^en^tr^y^on^{to priv}^{ate property}^wⁱ^t^h^ou^{t prior j}^u^{dicial w}^a^rran^{t. W}^e^{are n}^o^t^j^u^s^t^legⁱ^s^l^atiⁿ^g^f^o^{r th}ⁱ^s
^Gov^e^rnm^e^{nt or t}^h^eⁿ^e^x^t^...^{we are actu}^a^ll^yⁱ^m^pairing^t^h^e^c^oⁿ^s^tit^u^tioⁿ^a^l^f^r^eedo^m^s^{of th}^e²³⁰
ⁱⁿ^dⁱ^vⁱ^d^u^{als o}^f^thⁱ^s^co^uⁿ^tr^y^.
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^Inte^llig^eⁿ^c^e^Se^rv^ic^e^Ac^{t 199}^{4, c}^.^13,^§⁵⁽³⁾^.
²²⁴^Id^.,^§^5.
²²⁵^Se^c^u^r^ity^Se^r^v^ic^es^A^c^{t 199}^{6, c}^.³⁵^{, §}^1.
²²⁶^Inte^llig^eⁿ^c^e^Se^rv^ic^e^Ac^{t 199}^{4, c}^.^13,^§^6.
²²⁷^Id^.,^§^5.
²²⁸^C^LIV^E^W^AL^KE^R^,^B^LA^C^K^S^T^O^N^E^’^S^G^U^I^D^E^TO^T^H^E^A^NT^I^-T^E^RRORI^S^M^L^EG^I^S^LA^TI^O^N^{164 (}²⁰⁰²⁾^.
²²⁹^Ex^e^c^u^tiv^e^w^a^r^r^a^nts^a^r^e^c^ontr^a^r^y^{to the}^c^ons^tit^uti^ona^l^pr^incⁱ^ple^s^e^s^ta^blis^he^{d i}ⁿ^Eⁿ^tⁱ^{ck v.}^C^a^rriⁿ^g^t^oⁿ^{, 19 St.}^T^r^.¹⁰³⁰
⁽¹⁷⁶⁵⁾^.
²³⁰⁵⁷³^P^AR^L^.^D^EB^{., H}^.^L^.⁽⁵^th^s^e^r^.⁾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
state.”
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:
^T^h^{e dis}^a^dv^an^ta^g^e^of^t^h^{e ex}^c^l^us^ion^a^r^y^r^u^{le ... is}^t^h^{at a num}^be^{r of}^{bad an}^{d dan}^g^e^rou^s^people
^canⁿ^o^{t b}^e^tr^ied^f^o^r^th^eⁱ^r^crⁱ^m^{es, alth}^o^u^g^h^co^g^eⁿ^t^an^d^ir^r^e^f^u^tab^l^{e e}^v^id^en^{ce e}^x^is^{ts a}^g^aiⁿ^s^t
^th^e^m^{—a ... pro}^b^lem^t^h^{at t}^h^{e Hom}^e^Secretar^y^w^aⁿ^t^s^{to s}^o^lv^{e not by}^a^b^o^lⁱ^s^hⁱⁿ^g^t^h^e^b^aⁿ^,^b^u^t^by

²³¹^J^US^T^I^CE^{, Re}^g^u^la^{tion of}^Inv^e^stig^a^t^ory^P^o^w^e^rs^{Bill: Hum}^a^{n Rig}^h^{ts Audit}^,^Ma^y²⁰⁰^0.
²³²⁵⁰^U^.^S.C.¹⁸⁰⁴^(a)(7^)(B)(2⁰⁰⁰^ed^{.); 1}⁸²³^(a)(7^)(B)(²⁰⁰⁰^ed^.).
²³³⁵⁰^U^.^S.C.¹⁸⁰⁴^(a)(7^)(B);¹⁸²³⁽^a⁾⁽⁷^)(B).
²³⁴⁵⁰^U^.^S^.^C^.¹⁸⁰⁶⁽^k⁾^;¹⁸²⁵⁽^k⁾^.
²³⁵^In^{re S}^e^aled^C^a^se^{, 3}¹⁰^F.3^d⁷¹^7,⁷³⁵^-³^{6 (}^F^.I^.S.C^t.^R^e^v^.²⁰⁰²⁾^.
²³⁶^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}¹⁷^.
²³⁷^P^r^o^f^esso^{r J.}^R.^S^p^en^cer,^T^a^p^pⁱⁿ^g^into^the^Te^le^ph^one^{, N}^.^L^.^J^.¹⁵^5.7¹^{66 (}³⁰⁹⁾⁽²⁰⁰⁵⁾^.
²³⁸^Ho^m^e^O^f^fⁱ^ce,^Se^c^u^rity^{: Surv}^e^illa^nc^e^{, Ja}^{n. 2}⁰⁰⁵^{, a}^v^a^ila^ble^a^t^http^://^se^c^u^rity^.ho^m^e^o^ff^ic^e^.^g^o^v^.^uk^/^s^urv^e^illa^nc^e^/
^c^o^m^m^unic^a^tions^-^s^e^r^vⁱ^c^e^-^pr^ov^ide^r^s^/¹⁴⁶⁰⁸^{5 (}^l^a^s^{t v}ⁱ^s^ite^d^A^p^r^.¹⁰^{, 2}⁰⁰⁶⁾^.
²³⁹^Ho^m^e^O^f^fⁱ^ce,^{Use o}^f^Co^mm^uⁿⁱ^c^a^tⁱ^oⁿ^s^Iⁿ^t^e^rcep^t^{as E}^vⁱ^d^en^ce,^av^ai^lable^at^http^://se^c^u^rity^.hom^e^o^ff^ic^e^.^g^o^v^.^uk^/
^surv^e^illa^nc^e^/inte^rc^e^p^tio^n/^c^o^m^m^uⁿ^ic^a^tions-i^nte^r^c^e^p^{t/ (la}^s^{t v}ⁱ^site^d^S^e^{pt. 1}^,²⁰⁰⁶^).

^a^b^o^lⁱ^s^hi^ng^t^h^e^ne^e^d^fo^r^t^rⁱ^a^l^s^,^aⁿ^d^gi^vi^ng^hi^ms^e^l^{f t}^h^e^l^e^ga^l^p^o^w^e^r^t^o^p^u^t^t^h^e^m^und^e^r^ho^use²⁴⁰
^arres^t^wⁱ^t^h^out^on^e.
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 h}^a^v^e^relu^ctaⁿ^tl^y^co^m^e^{to t}^h^{e con}^c^lu^sⁱ^on^t^h^{at du}^{e to th}^e^ch^angⁱⁿ^gⁿ^a^t^u^{re of}^teleph^oⁿ^e
^t^echⁿ^o^l^o^gy^aⁿ^{d t}^h^{e i}^m^port^aⁿ^c^{e, du}^riⁿ^g^{a peri}^{od of}^ch^ang^e^{, o}^fⁿ^o^t^s^e^nsⁱ^tⁱ^sⁱⁿ^g^t^e^rrori^s^t^s^an^d
^serⁱ^o^u^{s cr}ⁱ^mⁱⁿ^al^{s to}^p^a^r^ticu^l^ar^cap^ab^{ilities th}^at^w^{ill b}^eⁱ^m^p^o^r^tan^t^f^o^r^th^{e f}^u^t^u^r^e^{, th}^er^{e ar}^e²⁴¹
ⁱⁿ^{deed g}^{ood reas}^on^sⁿ^o^t^t^o^rem^o^v^e^t^h^{e bar on}^t^h^{e us}^{e of}ⁱⁿ^t^e^rceptⁱⁿ^ou^{r cou}^r^t^s^.
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
fair trial.”
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^P^r^o^f^esso^{r J.}^R.^S^p^en^cer,^T^a^p^pⁱⁿ^g^into^the^Te^le^ph^one^{, N}^.^L^.^J^.¹⁵^5.7¹^{66 (}³⁰⁹⁾⁽²⁰⁰⁵⁾^.
²⁴¹^Sir^Ste^pheⁿ^L^a^nde^r^,^Ta^ppⁱⁿ^{g a}ⁿ^d^Te^r^r^o^r^{, I}^NDE^P^E^N^D^E^N^T⁽^L^ondon)^,^Fe^{b. 7}^,²⁰⁰⁵^.
²⁴²^{R v}^Bai^l^e^y^[¹⁹⁹^3]^A^l^l^E^R⁵¹³^;^R^v^K^han^[¹⁹^97]^A^C⁵⁵⁸^an^d^Khaⁿ^{v t}^h^{e UK}⁽²⁰⁰¹⁾^EH^R^R¹⁰^16.
²⁴³^{R v}^Bai^l^e^y^[¹⁹⁹^3]^A^l^l^E^R⁵¹³^.
²⁴⁴^B^LA^C^K^S^T^O^N^E^’^S^C^RI^MI^N^A^L^P^RA^CT^I^C^E²⁰⁰^{6, (}^P^e^t^e^r^Mur^phy^e^t^a^l^{. e}^d^s^.^{, 20}⁰⁶⁾²²⁰²^r^e^f^e^r^rⁱ^ng^{to B}^u^t^t^oⁿ^[²⁰⁰⁵^]^C^r^im^L^R
⁵⁷¹^.^S^{ee al}^so^C^h^a^l^kl^{ey v t}^h^{e UK}^[²⁰⁰³^]^C^r^im^L^R^51;^P^G^aⁿ^d^{JH v}^t^h^{e UK}^[²⁰⁰²^]^C^r^im^L^R^308;^P^e^{rry v t}^h^{e UK}^[²⁰⁰^3]
^C^r^im^L^R^{281 a}ⁿ^{d Ma}^s^oⁿ^[²⁰⁰²^]^{2 C}^r^A^{pp R}⁶²^8.
²⁴⁵¹⁸^U^.^S^.^C^.²⁵¹⁷⁽³⁾^;⁵⁰^U.^S^.^C^.¹⁸⁰⁶^.
²⁴⁶¹⁸^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
intercepts have:
^{... a detailed u}ⁿ^d^ers^t^an^ding^of^th^{e le}^gⁱ^s^l^ation^aⁿ^{d s}^t^riv^e^a^s^sⁱ^du^ous^l^y^{to co}^m^p^l^y^wⁱ^t^h^th^e
^statutor^y^{criteria ... in}^m^y^vⁱ^e^w^,^th^{ere is v}^e^r^y^litt^le^{, if}^any^,^dan^g^{er th}^{at an}^application^w^h^ic^hⁱ^s
^def^ectiv^{e i}ⁿ^s^u^bs^tan^ce^wⁱ^{ll be p}^l^{aced bef}^o^{re th}^{e Secretary}^of^St^{ate ... [th}^e^ag^en^cies^]^w^e^l^c^om^e
^t^h^{e ov}^ersⁱ^g^h^t^of^t^h^{e C}^o^mmⁱ^s^sⁱ^on^{er, bot}^h^f^r^om^t^h^{e poi}ⁿ^t^of^vⁱ^e^w^of^s^e^e^kⁱⁿ^g^hⁱ^s^advⁱ^ce,^w^hⁱ^c^h
^th^e^y^d^o^q^u^ite^f^r^eq^u^eⁿ^t^l^y^{, a}ⁿ^d^{as a r}^eassu^r^aⁿ^{ce to}^th^e^g^eⁿ^e^r^a^l^p^u^b^{lic th}^{at t}^h^eir^activ^{ities ar}^e²⁴⁹
^ov^ers^een^b^y^aⁿⁱⁿ^depen^d^eⁿ^t^pers^on^w^h^{o h}^a^s^h^e^l^d^hⁱ^gh^j^u^di^ci^al^of^fⁱ^ce.
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
Northern Ireland.
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^Ho^m^e^O^f^fⁱ^ce,^Ch^{ecks o}ⁿ^S^u^r^vei^l^l^aⁿ^ce,^a^v^aⁱ^l^a^b^l^e^a^t^h^ttp:^//www^.hom^e^o^ff^ic^e^.^g^o^v^.^uk^/se^c^u^rit^y^/^s^urv^e^illa^nc^e^/^re^g^u^la^tions
⁽^l^a^s^{t v}ⁱ^s^ite^{d Se}^pt.^1,²⁰⁰⁶⁾^.
²⁴⁸^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}⁵⁷⁽²⁾^.
²⁴⁹^I^NT^E^R^C^E^P^T^I^{ON O}^F^C^OM^M^U^N^I^C^A^T^I^ONS^C^O^MMI^S^S^I^O^N^E^R^,^R^EPO^R^{T O}^F^T^H^E^I^NT^E^RCE^P^T^I^{ON O}^F^C^OM^M^UNI^C^A^T^I^ON^S
^C^O^M^M^I^SS^IO^N^E^R^FO^R²⁰⁰^4,²⁰^04-^5,^H^C⁵⁴^9.
²⁵⁰^Iⁿ^v^e^s^tig^a^t^or^y^Pow^e^r^s^T^r^ibuna^{l, A}^dditi^ona^l^O^v^e^r^sⁱ^g^h^{t, Ma}^y^.²⁰⁰⁶^,^a^v^aila^ble^at^htt^p^://w^ww^.ipt-uk^.^c^o^m^/
^de^f^a^ult.a^s^p?^s^e^c^tionI^D⁼^8.
²⁵¹^Offⁱ^c^e^o^f^Surv^e^illa^nc^e^Com^m^issi^one^rs,^Est^abl^ishmeⁿ^{t an}^d^Re^sp^on^sibilitie^s^{, 20}⁰³^,^av^a^ila^ble^a^t
^h^ttp^s:/^/^www^.su^r^v^e^illan^ceco^mmⁱ^s^sⁱ^oⁿ^e^rs.g^o^v^.u^k^/^a^bout^_e^s^t^a^b^lis^hm^eⁿ^t.h^t^m^l^.
²⁵²^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^1,c^.^23,^§⁶⁵^aⁿ^d^the^P^o^lic^e^A^c^{t 1997}^{, c}^.^50,^§⁹¹^.
²⁵³^{18 U}^.^S.C^.²⁵¹⁷^,²⁵^18.

the various required reports to the public and Congress on the use of the authority under Title III ²⁵⁴
and FISA.
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^{; 5}⁰^U^.^S.C^.¹⁸⁰⁷^,¹⁸^08.
²⁵⁵^Ho^m^e^O^f^fⁱ^ce,^Ch^{ecks o}ⁿ^S^u^r^vei^l^l^aⁿ^ce,^a^v^aⁱ^l^a^b^l^e^a^t^h^ttp:^//www^.hom^e^o^ff^ic^e^.^g^o^v^.^uk^/se^c^u^rit^y^/^s^urv^e^illa^nc^e^/^re^g^u^la^tions
⁽^l^a^s^{t v}ⁱ^s^ite^{d Se}^pt.^1,²⁰⁰⁶⁾^.
²⁵⁶^T^h^e^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^T^r^ibun^a^l^,^P^O^B^o^x³³²²⁰^,^L^oⁿ^d^oⁿ^{, SW}¹^H^9ZQ^,^T^e^{l: 0}^11-^44-²⁰^7-⁰^35-³⁷¹¹^“^T^he^I^P^T
^rep^l^aced^t^h^{e Int}^e^rcep^tⁱ^oⁿ^o^f^Co^m^m^uⁿⁱ^catⁱ^oⁿ^s^T^rⁱ^buna^l^,^the^Se^c^u^rit^y^Se^r^v^ic^e^T^r^ibuna^{l, t}^h^e^In^te^llig^eⁿ^c^e^Se^rv^ic^e^s
^T^r^ibuna^{l a}ⁿ^{d t}^h^e^c^o^m^p^la^ints^pr^ov^is^ion^of^P^a^r^t^I^I^I^of^the^Polic^e^A^c^{t 1997}⁽^c^onc^e^rⁿⁱ^ng^p^o^lic^eⁱⁿ^te^r^f^e^r^eⁿ^c^e^w^{ith pr}^ope^r^t^y⁾
^{in O}^c^to^be^r²⁰⁰⁰^.”^Iⁿ^v^e^s^tig^a^t^or^y^Pow^e^r^s^T^r^ibuna^{l, L}^e^g^a^{l P}^r^ov^is^ions^,^J^a^{n. 2}⁰⁰⁵^,^av^ail^able^at^htt^p^://w^ww^.ipt-uk^.^c^o^m^/
^de^f^a^ult.a^s^p?^s^e^c^tionI^D⁼^5.
²⁵⁷^Th^{e I}ⁿ^vestⁱ^g^at^o^r^y^P^o^w^e^r^s^Trⁱ^b^uⁿ^al^R^u^l^e^{s 20}⁰⁰^,^S^I²⁰⁰⁰^/²⁶⁶⁵^.
²⁵⁸^I^NT^E^R^C^E^P^T^I^{ON O}^F^C^OM^M^U^N^I^C^A^T^I^ONS^C^O^MMI^S^S^I^O^N^E^R^,^s^upr^a^f^oot^no^te²⁵^{0, a}^t^¶³⁷^.
²⁵⁹^Iⁿ^v^e^s^tig^a^t^or^y^Pow^e^r^s^T^r^ibuna^l,^St^ru^ct^u^r^{e o}^f^t^h^{e T}^rⁱ^b^un^al^{, J}^a^n.²⁰⁰⁵^,^av^ail^able^at^http^://w^ww^.ipt-uk^.^c^o^m^/
^de^f^a^ult.a^s^p?^s^e^c^tionI^D⁼^7.
²⁶⁰^Id^.
²⁶¹^Iⁿ^v^e^s^tig^a^t^or^y^Pow^e^r^s^T^r^ibuna^l,^F^A^Qs^{, J}^a^{n. 20}⁰³^,^av^aila^ble^at^http:^//www^.ipt-uk^.^c^o^m^/
^de^f^a^ult.a^s^p?^s^e^c^tionI^D⁼^FA^Q&^Q⁼^1.

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
investigate.
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^T^h^e^bod^ie^{s w}^h^ic^{h m}ⁱ^g^h^{t be}^be^lie^v^e^{d to ha}^v^e^pe^rf^orm^e^{d a}^c^tiv^itie^{s i}ⁿ^re^la^tio^{n t}^o^the^inte^rc^e^p^ti^on^of^c^o^m^m^unic^a^tions
^a^r^e^:^aⁿ^y^o^f^the^Inte^llig^eⁿ^c^e^Se^rv^ic^e^s^{; the}^Se^rio^u^{s Org}^a^niz^e^d^Crim^e^Ag^eⁿ^c^y^(SOC^A⁾^{; the}^Me^trop^olita^{n Polic}^e^;^the^Polic^e
^Se^rv^ic^e^f^o^{r Northe}^rn^Ire^la^nd⁽^P^S^N^{I); a}^Sc^ottis^{h p}^o^lic^e^f^o^rc^e^;^H.M.^Custom^{s &}^Ex^cⁱ^se^(HMC&^E^{); or one}^of^H.M
^A^r^m^e^{d For}^c^e^s^{. I}^f^theⁱⁿ^divⁱ^dua^l^b^e^lie^v^e^s^tha^t^his^c^o^m^m^unic^a^tions^h^a^v^e^be^eⁿ^inte^r^c^e^p^te^{d by}^a^not^he^r^b^ody^{, the}
^a^ppro^p^ria^t^e^a^u^t^hority^{to c}^o^nta^c^t^is^the^p^o^lic^e^.^T^h^e^b^odie^s^c^o^nta^c^t^e^d^{to i}ⁿ^v^e^stig^a^t^e^w^h^e^t^he^{r a}^c^tiv^itie^{s ha}^v^e^be^eⁿ
^c^o^m^m^itte^{d in re}^la^tion^to^intr^usiv^e^surv^e^illa^nc^e^a^r^e^:^aⁿ^y^{UK polic}^e^f^o^rc^e^,^inc^l^u^dⁱⁿ^g^P^S^{NI a}ⁿ^{d t}^h^e^p^o^li^c^e^f^o^rc^e^s^of^HM
^Forc^e^s^{; the}^SOCA^{; He}^{r Ma}^je^sty^’^s^Custom^{s a}^{nd Ex}^cⁱ^se^{; a}ⁿ^y^of^the^inte^llig^eⁿ^c^e^se^rv^ic^e^s^{; the}^Ministry^of^De^f^e^nc^e^P^o^lic^e^;
^{or the}^Br^{itish T}^r^aⁿ^sp^ort^Polic^e^.
²⁶³^Iⁿ^v^e^s^tig^a^t^or^y^Pow^e^r^s^T^r^ibuna^{l, I}ⁿ^te^r^c^e^p^tio^{n of}^C^o^m^m^unic^a^tions^,^J^a^{n. 2}⁰⁰⁵^{, a}^v^a^ila^ble^a^t^h^ttp:^//w^w^w^.ⁱ^pt-^u^k^.^c^o^m^/
^d^e^f^a^u^l^t^.^asp^?^sectⁱ^oⁿ^I^D=1^&^ch^ap^t^e^r=1^.^In^o^r^d^e^r^t^o^c^o^mm^en^ce^anⁱⁿ^vestⁱ^g^atⁱ^oⁿ^,^t^h^{e I}^P^T^req^uⁱ^{res t}^h^{e com}^p^l^aⁱⁿ^an^t^sⁿ^a^m^e^,
^a^ddr^e^s^s^,^da^te^of^bir^t^h,^na^m^e^of^{the or}^g^a^niz^a^tion^the^c^l^aⁱ^m^r^e^la^te^s^to,^te^le^pho^neⁿ^u^m^b^e^r^s^,^a^{ll pos}^ta^{l a}ⁿ^d^e^-^m^a^{il a}^ddr^e^s^s^e^s
⁽^f^or^a^lle^g^a^tions^of^inte^r^c^e^p^tio^{n of}^te^le^c^o^m^m^unic^a^tions⁾^a^{nd v}^a^rio^u^s^de^ta^{ils of}^the^c^o^nd^uc^{t c}^o^m^p^la^ine^d^a^bou^{t. On}^ly^the
^na^m^e^{, a}^ddr^e^s^s^a^{nd da}^te^of^bir^t^{h is}^r^e^v^e^a^l^e^d^{to the}^or^g^a^niz^a^tion^durⁱⁿ^g^the^I^P^T^’^s^init^ia^{l inv}^e^s^tig^a^tion^t^o^“^t^{o e}ⁿ^a^b^le^r^e^c^o^r^d
^se^a^r^c^h^e^s^{to be}^m^a^de^{to se}^e^if^aⁿ^y^inf^o^rm^a^{tion is he}^ld.”^Furt^he^{r i}ⁿ^f^o^rm^a^{tion is}^only^re^le^a^s^e^d^if^the^IPT^{is g}^r^aⁿ^te^d
^pe^rm^{ission by}^the^c^o^m^p^la^ining^pa^rty^{to do so}^{; h}^o^w^e^v^e^{r, the}^IP^T^no^t^e^{s tha}^t^{it w}^{ill be}^una^ble^{to “}^c^o^nd^u^c^{t a}^s^thor^oug^{h a}ⁿ
^inv^e^s^tig^a^{tion if}^[^t^he^c^o^m^p^la^inaⁿ^t^doe^s^]ⁿ^o^{t c}^o^ns^eⁿ^{t t}^o^t^h^e^s^e^de^ta^ils^be^ing^dis^c^los^e^d^.^”^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^T^r^ibuna^l,
^{How to C}^o^mpl^aⁱⁿ^to^the^Trib^un^al^,^A^p^r^.²⁰^05,^av^ai^la^ble^at^htt^p^://w^ww^.ipt-uk^.^c^o^m^/^de^f^a^ult.a^s^p?^se^c^tionID=^3.
²⁶⁴^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}⁸¹^aⁿ^{d t}^h^e^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^T^r^ibuna^{l, H}^o^w^{to C}^o^m^p^laⁱⁿ
^{to t}^h^e^T^r^ibuna^l,^A^p^r^.²⁰⁰⁵^,^av^ail^a^ble^at^htt^p^://w^ww^.ipt-uk^.^c^o^m^/^de^fa^ult.a^s^p?^se^c^tionID=^3.
²⁶⁵^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}⁸¹^{, a}ⁿ^{d t}^h^e^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^T^r^ibuna^{l, F}^A^Q^’^s^,^J^a^{n. 2}⁰⁰³^,
^av^ail^able^at^http^://w^ww^.ipt-uk^.^c^o^m^/^de^f^a^ult.a^s^p?^se^c^tionID=^FA^Q^&^Q=^1.
²⁶⁶^Iⁿ^v^e^s^tig^a^t^or^y^Pow^e^r^s^T^r^ibuna^l,^Ho^w^t^o^C^o^m^p^l^aⁱⁿ^to^th^e^T^rⁱ^b^uⁿ^a^l^{, A}^p^r^.²⁰⁰^5,^av^ail^a^b^l^e^at^htt^p^://w^ww^.ipt-uk^.^c^o^m^/
^de^f^a^ult.a^s^p?^s^e^c^tionI^D⁼^3.
²⁶⁷^Id^.

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
sanctions.

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^,²⁵^20,²⁷¹²^{; 5}⁰^U^.^S.C^.¹⁸^09.
²⁷¹^R^I^P^A^§22(⁴⁾^.^S^ee^a^l^so^Hom^e^O^ffic^e^,^Se^c^u^rity^{: Surv}^e^illa^nc^e^,^av^ail^a^ble^at^htt^p^://se^c^u^rity^.hom^e^o^ff^ic^e^.^gov^.uk^/
^su^rv^eillan^ce/acce^ss-to^-d^ata/d^e^fⁱⁿ^itioⁿ^-^c^o^mm^uⁿⁱ^ca^tioⁿ^s^-d^{ata/ (last v}ⁱ^sited^A^p^{r. 1}⁰^,²⁰⁰⁶⁾^.
²⁷²^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, c}^.²³^{, §}²²⁽²⁾^.
²⁷³^{2 C}^URRE^NT^L^AW^S^TA^T^U^TES²⁰⁰^0,⁽^C^hr^is^ti^ne^B^e^e^s^ley^e^t^a^l^{. e}^d^s^{., 2}⁰⁰⁰⁾^aⁿ^{d R}^e^g^u^la^ti^on^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^t
²⁰⁰^{0, c}^.²³^,^{§ 2}²^.
²⁷⁴^R^e^g^u^la^tion^of^Iⁿ^v^e^s^tig^a^t^or^y^P^o^w^e^r^s^A^c^{t 200}^{0, 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
access:
• 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
disclosure.
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^.,^§¹⁰^2.
²⁷⁷^Britaiⁿ^{’s Al Q}^a^e^d^a^Co^nne^c^tio^ns^{, J}^a^n.²⁹^{, 200}^2,^av^ai^la^ble^at^htt^p^://^ne^w^s^.bbc^.c^o.uk^/¹^/hi/^uk^/17⁷⁵⁶⁸³^.^s^tm^{, a}^nd^s^upr^a
^f^ootnote¹⁵^3,^a^t¹⁵^7.
²⁷⁸^W^e^ndy^{M. G}^r^os^sm^aⁿ^,^W^{ill log}^gⁱ^{ng y}^o^{ur e}^m^ail^c^o^mb^{at te}^{rrorism i}ⁿ^Eur^ope^?^G^UA^R^D^I^A^N⁽^L^ondon)^J^a^{n. 1}²^,²⁰^06,
^av^ail^able^at^http^://te^c^hⁿ^o^l^o^g^y^.^g^ua^rdia^n.c^o^.uk^/^we^e^k^l^y^/^s^tory^/⁰^,¹⁶³⁷⁶^,¹⁶⁸³⁹⁴^4,0⁰^.^h^tm^l.
²⁷⁹¹⁸^U^.^S.C.²⁷⁰²^(b⁾⁽³⁾^,(c)(2^).
²⁸⁰¹⁸^U^.^S.C.²⁷⁰²^(b⁾⁽²⁾^{, (c)(1}⁾^.
²⁸¹¹⁸^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⁾^.^T^h^e²¹^st^C^e^nt^ur^y^D^e^pa^r^t^m^e^{nt of}^J^u^s^tic^e^A^ppr^o^p^rⁱ^a^tio^ns^A^u^thor^iz^a^tⁱ^{on A}^c^{t, 1}¹⁶^Sta^t^{. 1}⁸²²
⁽²⁰⁰²⁾^,^a^m^e^nde^{d s}^e^c^{tion 2}⁷⁰³^t^o^pe^r^m^{it e}^x^e^c^u^tion^of^the^w^a^r^r^a^{nt by}^se^r^v^ice^pr^ov^ide^r^s^aⁿ^d^ot^he^r^s^w^ithou^{t r}^e^q^u^ir^ing^t^h^e
^pr^e^s^eⁿ^c^e^of^a^f^e^de^r^a^{l of}^fⁱ^c^e^r^{, 18}^U^.^S.C^.²⁷⁰³⁽^g⁾⁽^“^N^o^tw^iths^t^a^ndi^ng^s^e^c^tion³¹⁰⁵^of^this^tit^le^{, the}^pr^e^s^eⁿ^c^e^of^aⁿ^of^fⁱ^ce^r
^sh^al^l^no^t^b^e^re^q^uⁱ^re^d^f^o^{r servi}^{ce o}^r^execu^tⁱ^oⁿ^o^f^{a search}^w^a^rran^tⁱ^ssu^edⁱⁿ^acco^rd^an^{ce w}ⁱ^t^h^t^hⁱ^s^c^h^apt^e^{r req}^uⁱ^riⁿ^g
^dis^c^los^u^r^e^by^a^pr^ov^ide^r^of^e^l^e^c^t^r^onic^c^o^m^m^unic^a^tions^s^e^r^v^ic^e^or^r^e^m^o^te^c^o^m^puting^s^e^r^v^ic^e^of^the^conteⁿ^ts^of
^co^mm^uⁿⁱ^catⁱ^oⁿ^s^o^r^reco^r^d^{s o}^r^o^t^{her i}ⁿ^f^o^rm^atⁱ^oⁿ^p^e^rt^aiⁿⁱⁿ^g^t^o^{a subscri}^b^{er t}^o^o^r^cu^st^o^m^{er o}^f^su^ch^ser^vⁱ^ce”),^see^Unite^d^th
^S^t^a^t^{es v.}^B^a^ch^,³^{10 F.3}^d¹⁰⁶³⁽⁸^Ci^r.²⁰⁰²^)(t^h^e^F^o^u^r^t^h^Am^en^d^m^eⁿ^t^do^{es no}^t^requⁱ^r^{e t}^h^{e p}^r^esen^{ce of}^a^f^e^d^e^ral^o^f^fⁱ^c^e^r
⁽^c^onti^nue^d.^..)

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
notification, i.e.:
• 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

^(...c^on^tin^ue^d)
^w^h^en^t^echⁿⁱ^ci^an^{s execu}^t^e^{a searc}^h^w^a^rran^t^oⁿ^{a servi}^{ce p}^r^o^vⁱ^d^er’s^server).
²⁸⁴¹⁸^U^.^S.C.²⁷⁰³^{(a), (b}⁾⁽¹^)(A^{), (2}⁾^.
²⁸⁵¹⁸^U^.^S.C.²⁷⁰³^(b⁾⁽¹^{)(B), (}^d^).
²⁸⁶¹⁸^U^.^S.C.²⁷⁰⁵^(a)(1^)(A^{), (4}^).
²⁸⁷¹⁸^U^.^S.C.²⁷⁰⁵^(a)(1^{)(B), (}⁴^).
²⁸⁸¹⁸^U^.^S.C.²⁷⁰⁵^(a)(2^{), (}^b^).
²⁸⁹¹⁸^U^.^S.C.²⁷⁰³^(c)(1^),(³^).
²⁹⁰¹⁸^U^.^S.C.²⁷⁰³^(c)(2^),(³^).
²⁹¹⁵⁰^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⁽²⁰⁰^{0 e}^d^.)^.
²⁹³^U^nde^r^s^e^c^tio^{n 1}⁰²⁽^b)^of^the^U^S^A^P^A^T^R^I^O^T^I^m^pr^ov^em^eⁿ^{t a}^{nd Re}^a^u^th^oriz^a^tio^{n A}^c^{t, the}^FISA^ta^ng^ib^le^ite^m^s
^pr^ov^is^io^ns^r^e^v^e^r^t^{to t}^h^eⁱ^r^pr^e^-^U^S^A^P^A^T^R^I^O^T^A^c^{t f}^o^r^m^oⁿ^Dece^mb^{er 3}¹^,²⁰⁰⁹^,^excep^t^wⁱ^t^h^regard^t^o^f^o^rei^gⁿ
^inte^llig^eⁿ^c^e^inv^e^stig^a^{tions i}ⁿ^itia^te^{d be}^f^o^re^tha^t^da^te^{or “}^aⁿ^y^pa^rtic^ul^a^r^of^fe^nse^{or pote}ⁿ^tia^l^of^fe^nse^tha^t^be^g^a^{n or}
^oc^c^u^r^r^e^{d be}^f^o^r^e^”^tha^t^da^te^,^P^.^L^.¹^09-¹⁷^7,^§10²⁽^b)^,¹²^{0 Sta}^t^.¹^{95 (}²⁰⁰⁶⁾^.
²⁹⁴⁵⁰^U^.^S.C.¹⁸⁶¹^(a),(b^),(c).
²⁹⁵⁵⁰^U^.^S^.^C^.¹⁸⁶¹⁽^a⁾^.
²⁹⁶⁵⁰^U^.^S^.^C^.¹⁸⁰⁵⁽^d⁾^.
²⁹⁷⁵⁰^U^.^S^.^C^.¹⁸⁶¹⁽^e⁾^.
²⁹⁸⁵⁰^U^.^S.C.¹⁸⁶¹^(f⁾⁽¹^{), (2}^)(A^{), (2}⁾⁽^B).
²⁹⁹⁵⁰^U^.^S.C.¹⁸⁶¹^(f⁾⁽²^{)(C), (D).}
³⁰⁰⁵⁰^U^.^S.C.¹⁸⁶¹^(f⁾⁽³^),(4^),(⁵^).
³⁰¹^{50 U}^.^S.C^.¹⁸⁶¹⁽^g⁾^;^s^e^e^a^l^s^o⁵⁰^U^.^S.C^.¹⁸⁶¹⁽^c⁾⁽¹⁾^.
³⁰²⁵⁰^U^.^S^.^C^.¹⁸⁶¹⁽^h⁾^.
³⁰³⁵⁰^U^.^S.C.¹⁸⁶¹^(a)(3^).
³⁰⁴⁵⁰^U^.^S^.^C^.¹⁸⁶²^.
³⁰⁵^P^.^L^.¹⁰^9-¹⁷⁷^,^§¹⁰⁶^A^,¹²^{0 Sta}^t^{. 2}^00-^{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.
^C^l^{are Feik}^ert ^C^h^arle^s^Do^y^l^e
^Senⁱ^o^r^Sp^{ecialist i}ⁿ^Am^er^icaⁿ^P^u^b^{lic L}^a^w
^cdoy^l^e^@^c^rs^.l^oc.g^o^v^{, 7-}⁶⁹⁶⁸

³⁰⁶¹⁸^U^.^S^.^C^.²⁷⁰⁹^.
³⁰⁷¹⁸^U^.^S^.^C^.²⁷⁰⁹⁽^b⁾^.
³⁰⁸^{18 U}^.^S.C^.²⁷⁰⁹⁽^c⁾^;²⁸^U^.^S^.^C^.³⁵^11.
³⁰⁹^{18 U}^.^S.C^.²⁷⁰⁹⁽^e⁾^;^P^.^L^.¹^09-¹⁷^7,^§§¹¹^8,¹¹^9,¹²^{0 Sta}^t^{. 2}¹⁷^,²¹⁹⁽²⁰⁰⁶⁾^.