Report of the Independent Surveillance Review
67
in the work that they carry out. There is a strong culture of compliance and of self-reporting
when things go wrong.48
The Global Context
3.83
The challenges faced by the police and SIAs outlined in this chapter also have to be set
in a wider context that recognises the much greater relevance of global industry and
international politics to government interaction with the Internet. It requires a different
frame of reference in considering domestic surveillance powers.
3.84
While Internet users once were predominantly from Western developed countries, this
is no longer the case. Of the 40 per cent of the global population that currently has
access to the Internet, Europe and North America account for less than half of this total.
But future growth is much more likely to take place in South and East Asia, especially in
India and China, in Africa and in Latin America. The US remains far and away the most
important national actor in the politics and economics of the Internet, but the centrality
of the US is diminishing as large CSPs develop in countries such as China, and the private
sector disperses its operations across the globe.
3.85
Technical distinctions between communications that are domestic and that are
international are now difficult to sustain. In the previous era of telephone landlines a
national call was, by definition, a domestic communication. Now, internationally located
servers mean that a communication between two people within the same country might,
in reality, be via a foreign server and therefore be classed as international. What David
Anderson calls the ‘fragmentation of providers’ continues to break down the technical
distinctions between what is a domestic and an international communication, with all
the attendant difficulties of attributing any particular communication to its original
sender or recipient.49 New challenges posed by cloud computing, for example, arise
mainly from the storage of data outside the control of any single organisation in one
legal jurisdiction, which is now less likely to be in the US or the UK. Such manifestations
of extraterritoriality will undoubtedly become more acute as the number of users and
internet companies based in Asia, Africa and Latin America increases.
National Jurisdictions
3.86
If the Internet, by its very nature, straddles all the national legal jurisdictions of its users,
the fact remains that law-enforcement and intelligence organisations – as agents of the
state – are by definition subject to jurisdictional boundaries.
3.87
The European Court of Human Rights provides binding instruments that govern certain
aspects of the legal frameworks of its signatory members. This, however, does not cover
non-European states and only some of the most relevant aspects of interception and
48. May, Report of the Interception of Communications Commissioner: March 2015, p. 2.
49. Anderson Report, pp. 52–54 (paras 4.17-4.25).