Designing a New Regulatory Framework for Telecommunications Interception and Access in JordanMultiple Chapters

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Designing a New Regulatory Framework (Interception and Access) for Jordan

This chapter provides an overview of the telecommunication interception and access laws in the United States of America (U.S.) and the United Kingdom (U.K), as prime examples of developed telecommunications regulatory frameworks that, to some extent, can provide useful in-practice case studies in refining a regulatory regime for Jordan.

"Interception" is the electronic surveillance of private telecommunication transmissions in real time. Also commonly referred to as "wiretapping," (because historically the practice required the placing of a "tap" on a phone line), interception involves the use of a device or technology used to listen to live person-to-person communications such as land-line telephone calls, internet conversations, or conversations via wireless phone networks, as they occur. The parties in the communication (i.e., the individuals on either end of the telephone conversation) are typically not aware that they are being observed by a third party.

Telecommunications "access" is similar to interception, except that it refers to the act of accessing and reviewing a stored record of a communication that occurred in the past. For example, a recording of a telephone call or voicemail message, or an email message that is stored on a telecommunication carrier's systems or other media. Interception and access are generally accepted as tools of modern law enforcement and national security intelligence gathering and prosecution. Ongoing technological evolution has necessitated that both law enforcement agencies and legislative bodies grapple with issues related to the use of ever-increasing modes of internet and wireless communications, such as internet instant messaging and phone text messaging, which have all become common platforms for "live" communication.

Telecommunications interception and access are officially strictly controlled in many countries to safeguard an individual's privacy; this is the case in all developed democracies. In theory, telephone tapping often needs to be authorized by a court, and is, again in theory, normally only approved when evidence shows it is not possible to detect criminal or subversive activity in less intrusive ways; often the law and regulations require that the crime investigated must be at least of a certain severity. In many jurisdictions however, permission for telephone tapping is easily obtained on a routine basis without further investigation by the court or other entity granting such permission. Illegal or unauthorized telephone tapping is often a criminal offense.

The regulatory regime for telecommunications interception and access in Australia is a particularly well balanced interception and access framework that can serve as a primary model for a new regulatory regime in Jordan. The U.S. And the U.K also offer well developed interception and access regimes with some instructive elements, although in some ways less ideal as a model. The U.S. And U.K. together provide a distinct -- and in many ways common -- perspective on the issues of telecommunication interception. Both nations have developed interception and access regimes in a context where national security concerns hold a prominent position in both the legislative and public debate. As countries that share strong traditions of individual (citizen) freedoms and "privacy," it is interesting that both nations (in particular the U.S.) have created regulatory regimes that have the potential to intrude upon civil liberties to a greater degree than that of Australia or some other developed nations. One could argue that the modern history of terrorist activity in both the U.S. And the U.K. have been a driving force in the broadening of interception and access capabilities by law enforcement and national security agencies. Thus it is instructive to look at the two countries together, as a means to explore the balancing act between civil liberties and national security considerations in the regulatory environment.

4.2. EVOLUTION of REGULATION

To understand the current regulatory regimes in both nations, it is first necessary to examine how those regimes came to be and what legal, historical and societal forces were in operation that influenced their evolution. In many respects, the philosophical underpinnings and historical development of the U.S. And U.K regulatory regimes are parallel, due to some extent to shared history and culture between the two nations. As outlined below in sections 4.2.1 and 4.2.2., both nations have also been forced to respond to a combination of dramatic events and strong public sentiment as influences in the development of their respective regulatory regimes.

4.2.1 EVOLUTION of REGULATION in the UNITED KINGDOM

The evolution of telecommunications interception and access regulations in the U.K. is marked by an emphasis on secrecy and an unwillingness of legal (i.e., Parliamentary) authorities to interfere with the activities of police and national security. Wiretapping activity in the U.K. had "traditionally been conducted under conditions of considerable secrecy being governed by somewhat obscure administrative regulations rather than by precise legal controls." (Lloyd, 1986). The history of British monitoring of communications for national security purposes extends all the way back to the late 19th century and the introduction of the telegraph, with active application of surveillance during the Boer War in 1900 and the First World War (Hills, 2006). The approaches and legal structures around electronic communications surveillance continued to evolve, with the beginning of the "modern" era dating from the second World War with the BRU.S.A COMINT (communications intelligence) alliance between the United States and the United Kingdom (Hills, 2006). As a result of this agreement, a cooperative operation was set up, with broad monitoring of multiple streams of communications, with the information made available to both British security agencies (e.g., MI6) and U.S. security agencies (e.g., the National Security Agency, NSA). The system became known as "Echelon," based in the U.K., and over the years developed extensive automated monitoring programs to track phone calls, faxes, emails, and telex messages around the globe, with cooperative efforts among the U.K. And other countries in the European Union (Hills, 2006).

As noted above, the British legal system has relied largely on a complex set of historical precedents. The first legislative landmark that provided statutory guidance on interception was the 1985 Interception of Communications Act ("IOCA"). Prior to the passage of the IOCA, there was little actually spelled out in British law that explicitly made wiretapping illegal without specific warrants or authorization, beyond a few statutory provisions (Lloyd, 1986). The IOCA was passed partially in response to censure by the European Court of Human Rights on the basis that the U.K. interception practices were overstepping civil rights (Yeates, 2001-2). The IOCA introduced a warrant system that required law enforcement or national security agencies to obtain a warrant from a Secretary of State before setting up interception of any individual's communications, including both telephone and postal mail communication (Lloyd, 1986). It specified that a warrant could only be issued:

"(i) in the interests of national security;

(ii) for the purpose of preventing or detecting serious crime; or (iii) for the purpose of safeguarding the economic well-being of the United Kingdom" (Straw, 1999).

The IOCA also "placed strict safeguards on the extent to which intercepted material may be disclosed, copied and retained, requiring arrangements to be made to ensure that each of these is kept to a minimum." (Straw, 1999). Additionally, the IOCA introduced stiff monetary and imprisonment penalties for illegal interception activity.

The IOCA was criticized, however, for allowing multiple wiretaps from a single warrant. While the IOCA set up an Interception Commissioner to review warrant operations, and a complaint Tribunal, nevertheless, the act was also criticized on the basis that its oversight provisions were inadequate (Yeates, 2001-2). Additionally, the IOCA did not address the interception of communications that occurred over private communications networks, a gap that brought another adverse decision from the European Court of Human Rights in 1997. This led to closer examination of the IOCA by British authorities, who also recognized that the interception laws needed to evolve to address new technologies. A Consultation Paper by the British Home Secretary was issued in 1999 outlining the need to extend interception laws and warrant procedures to private networks (not just public telecommunications networks), and the need to acknowledge new market realities (e.g., by that time there were 150 telecommunications companies operating in the country) and to encompass new technologies such as cellular phones, satellite communication and the internet (Straw, 1999).

This instigated the passage of a new Parliamentary act, the Regulation of Investigatory Powers Act (the "RIPA") in 2000 (Yeates, 2001-2). While the RIPA addressed many critical aspects of modern interception practice, there were still some gaps and issues, as identified by critics. In particular, the RIPA does not address the practice of third-party participant monitoring, "where one party only consents to [i]nterception." (Justice, 1999). It also introduced provisions that give law enforcement agencies the power to unscramble encoded email (which requires significant participation from internet communications companies), a provision that has given rise to significant concerns (Reid & Ryder, 2001), as discussed in more detail in Section 4.6.

Since the passage of the RIPA in 2000, some refinements in interpretation of the act can be derived from relevant case law. For example, one important distinction has been… [END OF PREVIEW]

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