CHAPTER 8: COMPARISONS – INTERNATIONAL
International Comparisons
8.38.
8.39.
Comparing the UK’s legal regime with those of other countries is fraught with danger,
for a number of reasons:
(a)
The UK is far from unique in the complex and fragmented nature of the law
governing investigatory powers. I had the impression that in many countries,
the number of people professing fully to understand the relevant law, even
among academics and the legal profession, was remarkably small.
(b)
By focussing only on what is written on the page, the observer risks failing to
appreciate other aspects of how things operate in practice. Intelligence
agencies everywhere in the world operate largely in secrecy, for obvious
reasons. It cannot be excluded that practices take place which are completely
unknown to commentators or which have no legal sanction whatsoever (as was
the case with phone tapping in the UK prior to IOCA 1985).
But a comparative picture, however imperfect, is desirable. I have attempted to make
some comparative observations in respect of lawful interception, access to
communications data and communications data retention (amongst other topics).
However, this Chapter does not offer anything comprehensive or authoritative. In the
course of preparing it, I have drawn on published comparative surveys, on my own
visits to the US, Canada and Germany and on assistance kindly given by national
experts to address some issues of particular interest.1
Five Eyes partners
8.40.
UK security and intelligence agencies, together with their counterparts in Australia,
Canada, New Zealand and the USA, form part of the Five Eyes partnership – a
grouping which had its origins in the 1946 UKUSA information-sharing agreement,
declassified in 2010.2
8.41.
Each of the Five Eyes is a common law jurisdiction that shares at least some elements
of its legal heritage with the UK. As a result, the laws of the other Five Eyes members
provide a particularly useful comparator. I have briefly summarised the law of
interception and access to communications data in each of the Five Eyes states in
Annex 15 to this Report.
Content and communications data
8.42.
1
2
The precise boundaries between communications data and content are not defined in
the same manner around the world. However, there appears to be a broad consensus
that the content of a communication falls into a different category from data relating to
communications. As set out in Annex 15 to this Report, a number of the other Five
In particular David Medine (PCLOB) and Alan Butler (EPIC) from the US, Prof. Craig Forcese from
Canada and Prof. George Williams and Kieran Hardy from Australia.
See http://www.nationalarchives.gov.uk/ukusa/.
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