CHAPTER 8: COMPARISONS – INTERNATIONAL
Eyes partners have recently moved to clarify their definition of communications or call
associated data.3
Authorisation
8.43.
Many states provide different authorisation pathways for law enforcement on the one
hand and security and intelligence agencies on the other. In some, though not all,
states those differing frameworks are set out in separate statutory regimes.
8.44.
In contrast to the UK position, criminal law enforcement bodies in the United States,
Canada, Australia and New Zealand must all obtain judicial authorisation before they
carry out interception.4
8.45.
The position in terms of police access to communications data/metadata is more
complex. In Canada and Australia, some form of judicial authorisation is required
before the police may access metadata. In the United States, federal law enforcement
agencies such as the FBI may access metadata without judicial authorisation, but
State police forces ordinarily require a subpoena or a court order in order to do so.5
8.46.
As to the security and intelligence agencies of the Five Eyes partners, the US
intelligence agencies may apply to a specialised federal court, the Foreign Intelligence
Surveillance Court [FISC], in order to receive authorisation to collect intelligence
material. However, Executive Order 12333 [EO 12333] also provides the power to
intercept communications without judicial oversight.6 The Canadian Security and
Intelligence Service [CSIS] require both Ministerial and judicial authorisation (from a
special bank of Federal Court Judges) before they may carry out interception.
However, the Communications Security Establishment [CSE], which obtains foreign
intelligence outside Canada, may carry out overseas interception without prior judicial
approval.7 The structure in New Zealand is very similar to that in Canada. The New
Zealand Security and Intelligence Service [NZSIS] must obtain the approval of a
minister and a retired High Court judge, if it wishes to carry out interception inside
New Zealand. Foreign intelligence warrants may be authorised by the minister alone.8
The Australian Security Intelligence Organisation [ASIO] may be authorised to carry
out interceptions by the Attorney General.9
3
4
5
6
7
8
9
New Zealand: Telecommunications (Interception Capability and Security) Act 2013 [TICSA 2013]
established a new statutory definition of “call associated data”. Australia: a new mandatory data
retention regime specifies categories of information that must be kept by service providers for a period
of two years. Canada: The Protecting Canadians from Online Crime Act 2014 [PCFOC 2014], defined
“tracking data” and “transmission data” (Canadian Criminal Code para 487.011). USA: “Intercept” has
been defined since the 1968 under the Wiretap Act [WA 1968]: the “aural or other acquisition of the
contents of any wire, electronic or oral communication through the use of any electronic, mechanical or
other device”.
See paragraphs 80-84, 34-38, 8-13 and 68-72 in Annex 15 to this Report.
See paragraphs 85-86, 38, 17-24 and 73-75 of Annex 15 to this Report.
See para 102 of Annex 15 to this Report.
See para 54 of Annex 15 to this Report.
A similar mechanism applies to the Government Communications Security Bureau [GCSB]. See
paragraphs 64-67 of Annex 15 to this Report.
See paragraphs 3-7 of Annex 15 to this Report.
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