ANNEX 15: THE LAW OF THE FIVE EYES
Criminal law enforcement
80.
The WA 1968 governs interception of wireless, oral and electronic communications
within the United States. It defines intercept as “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.”89 Access to information that is not in the course
of transmission, is governed by the SCA.90
81.
All interceptions under the WA 1968 must be authorised by a court and are subject to
careful review. US Code s2516 of Title 18 sets out the basis on which law enforcement
staff, inside the United States, may be given authority to intercept communications.
Various senior officials within federal law enforcement agencies (such as the FBI or the
Attorney General’s office) may authorise an application to a Federal Judge of
competent jurisdiction for an interception warrant.91 The application must be in writing,
on oath and set out the facts and circumstances in some detail. I was told by law
enforcement agencies that these applications are frequently substantial documents.
An application may only be made in order to provide evidence (from the wiretap) that
will be relevant to certain serious federal felonies. If the application is for an extension,
it must set out the results obtained thus far or a reasonable explanation for the failure
to obtain results under the previous warrant.92
82.
The court must be satisfied that there is “probable cause for belief” that:93
(a)
An offence has been or is about to be committed;
(b)
Communications confirming the commission of the offence will be obtained;
(c)
Normal investigative procedures have been tried and failed or are unlikely to
succeed;
(d)
The communications method is or will be used in connection with the
commission of the offense.
83.
The third of those criteria is not required for other types of investigatory warrant, such
as a search warrant. As a result, interception warrants are sometimes referred to as
“super warrants”. The warrant shall not continue for longer than is necessary and may
not be issued for more than 30 days.94 In an emergency situation an interception may
begin without an application to the court, if an application is made within 48 hours.95
84.
The ordinary position under the WA 1968 is that an inventory of the fact of interception,
dates and whether anything was intercepted is provided to the persons named in the
order within 90 days of termination unless the authority can show “good cause” to
89
18 U.S.C § 2510(4).
As is the case in the United Kingdom, the precise boundary between data that is “in the course of
transmission” and communications data is a complex area of some uncertainty.
18 U.S.C. § 2516 (1).
18 U.S.C. § 2518 (1)(f).
Ibid. at (3).
Ibid. at (5).
Ibid. at (7).
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91
92
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94
95
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