Designing a New Regulatory Framework Multiple Chapters

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e., the company) that has technical control over telecommunications networks and thus technical ability to access communications, versus a party that is duly authorized to actually access those communications via a warrant (Mares, 2002). Although, as is consistent with the British model of legal evolution that relies heavily on interpretation of judicial action and precedent rather than overt legislative action, there have been no new statues issued in the intervening decade. The only other guiding document for law enforcement and judicial authorities to rely on regarding interception activity is a Code of Practice that was issued by the Home Secretary in 2002 (Interception of Communications: Code of Practice, 2002). This document provides more detailed procedural guidance and to some extent interpretation of the RIPA.

The table below summarizes the key milestones in the evolution of the United Kingdoms' regulatory regime:

Milestones in the Evolution of the United Kingdom Regulatory Regime

Year

Act / Event

1985

Interception of Communications Act 1985 ("IOCA")

1999

Interception of Communications in the United Kingdom, Consultation Paper

2000

Regulation of Investigatory Powers Act ("RIPA")

2002

Interception of Communications: Code of Practice, issued by the Home Secretary

4.2.2 EVOLUTION of REGULATION in the UNITED STATES

The earliest evolutionary stages of the U.S. interception system run tandem to the U.K. system, with the development of cooperative monitoring efforts during World War II and the Cold War period. The first significant telecommunications interception legislation in the U.S. was the 1934 Communications Act. The 1934 act "recodified earlier U.S. legislation from 1912 and 1927, providing that no person not authorized by the sender could intercept any communication and divulge the contents or existence of the message to any other person." (Yeates, 2001-2). Apparently, these statutes were not intended to prevent interception by law enforcement, although in fact, the U.S. Supreme Court ruled in 1928 that law enforcement agencies could intercept communications and use them as evidence in court trials. However, several years later, the Supreme Court issued decisions regarding provisions of the 1934 Communications Act that created inconsistencies. Nevertheless, these inconsistencies then persisted for many years, allowing law enforcement to intercept communications, but preventing the intercepted communications from being used as court evidence (Yeates, 2001-2).

In 1967, the U.S. Supreme Court issued two decisions: Berger v. New York and Katz v. United States, which clarified that the concept of the Fourth Amendment of the U.S. Constitution (the amendment that protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," applied to conversations as well. Thus, citizens should be protected from "searches and seizures" of any conversations in which an individual had a "reasonable expectation" of "privacy." In response to these decisions, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, which included "Title III" known as the Wiretap Act. The Wiretap Act established a regime of warrants required for law enforcement interception of communications, just as the Fourth Amendment had led to a system of warrants for law enforcement to conduct physical searches of an individual's premises.

The Wiretap Act addressed the issue of domestic law enforcement activity, but there were still gray areas with regard to national security interception activity. However, "as a result of a Congressional investigation following the Watergate scandal of 1974, the [collaboration with the British Echelon] project was halted. Charges that citizens had been spied on led in the late 1970s to President Carter ordering the end of 'back door' intelligence on U.S. political figures through the swapping of intelligence data with the British." (Hills, 2006). From this point onward, the U.S. interception regulatory framework takes a distinct evolutionary pathway. Notably,

"the scandals of unauthorized surveillance on individuals resulted in the passage by Congress in 1978 of the Foreign Intelligence Surveillance Act (FISA). This Act codified the authority that the FBI required in order to undertake domestic electronic surveillance, and separated out intelligence and criminal investigations. It created the Foreign Intelligence Surveillance Court, a secret court to approve requests for domestic surveillance (expected to be of non-American citizens) and to act as a watchdog over the rights of citizens subject to surveillance." (Hills, 2006).

One of the finer points of the Wiretap Act is that it focused exclusively on the surveillance of content -- i.e., the words that are spoken or communicated via an electronic medium. However, there are other mediums of communication and law enforcement continued to make use of every tool available at its disposal.

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One of these tools used in the U.S. was something called a pen register, a "device that permits the recording of telephone numbers that one dials. A similar machine, the 'trap and trace' device, is used to capture the numbers received by a telephone." (Schwartz, 2008). The Pen Register Act passed by Congress in 1968 regulates use of pen registers and trap and trace devices. However, even though warrants are required for pen register and trap and trace interception, there is a lower standard of review required for these warrants than for wire taps. (Schwartz, 2008).

Another significant development in the U.S. regulatory framework occurred in 1986, as an attempt to keep up with new forms of communication such as cellular phones, computer transmissions, pagers, and other electronic devices. Recognizing the evolution of technology, Congress enacted the Electronic Communications Privacy Act of 1986 ("ECPA"), which included Title III, commonly referred to as the Stored Communications Act ("SCA"). While not a replacement for the Wiretap Act, EPCA extended the provisions of the Wiretap Act and the various protections and restrictions on telephone interception, clearly establishing that those protections and restrictions apply to the various new forms of electronic communication as well (Yeates, 2001-2).

However, as Yeates explains, the EPCA extended law enforcement officers' ability to get interception warrants for any form of communication that they now had the technological capability to access. But EPCA did not address the more subtle issue of obtaining warrants for types of electronic communications that law enforcement could not technically access. "This is where CALEA comes in." (Yeates, 2001-2).

Following the first bombing of the World Trade Center in 1983 (a truck bomb attack that caused damage and took some lives, but was far less catastrophic than the later 2001 attacks), the government began to look closely again at a previously rejected proposal from the FBI which proposed "that U.S. telephone companies design their systems to guarantee they could be tapped by law enforcement agencies." (Hills, 2006). Previously, civil rights groups had expressed concerns about extending this capability to law enforcement, however the bombing provided the momentum to expand interception capabilities under the Communications Assistance for Law Enforcement Act (CALEA). The intent of CALEA was "to make clear a telecommunications carrier's duty to cooperate in the interception of communications for law enforcement purposes, and for other purposes." (Communications Assistance for Law Enforcement Act).

Despite objections from telecommunications and internet carriers about the potential cost and burden of complying with expanded requirements, in 2004 the U.S. Federal Communications Commission expanded CALEA provisions to incorporate the technical ability to intercept and access internet communications, including broadband telephony services such as voice over IP (VoIP). (Hills, 2008).

An additional U.S. legal mechanism that is used to set up communications interception for national security purposes are National Security Letters (NSLs), which were first introduced in the 1970s. An NSL "is a written directive by the FBI in cases involving national security; it does not require judicial review." (Schwartz, 2008). An NSL allows the government to act without going through the normal warrant process. In addition to electronic communications themselves, NSLs can also be used to obtain financial records, certain "telecommunications attributes" such as "subscriber information and toll billing records information, or electronic communication transactional records." (Schwartz, 2008).

By the turn of the Millennium, the 1968 Wiretap Act allowed interception of the content of communications, the Pen Register Act/Trap and Trace provisions allowed the collection of and access to the data surrounding communications, the Stored Communications Act dealt with access to stored communications, and FISA governed surveillance activities conducted for national security purposes. The parameters of all these Acts were soon to be tested and stretched. One of the most significant events in modern U.S. history occurred on September 11, 2001, when four jet airplanes were hijacked by Al-Qaeda terrorists on the Eastern seaboard. Two of these planes flew into and destroyed the twin towers of the World Trade Center in New York City killing more than 3,000 civilians, police and fire fighters; one plane flew into the Pentagon (the seat of the U.S. Defense Department) causing significant damage and loss of life; and a fourth plane crashed in a field in Pennsylvania, believed to have been headed for a second target in Washington, D.C. At the time, and killing all aboard. The impact of these events in the U.S., both in terms of societal/cultural attitudes, and with respect to the.....

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