International Working Group on Data Protection in Telecommunications

Common Position

on

Public Accountability in relation to Interception of Private Communications

adopted at the 23^rd Meeting in Hong Kong SAR, China

15 April 1998

1. While individuals should have a reasonable expectation of being able to communicate in private, other public interests will sometimes justify interception by appropriate authorities.
2. Interception should only be permitted in exceptional circumstances where justified in serious cases and subject to appropriate safeguards - such as judicial authorisation, notification of individuals, limits on use, and requirements for destruction of tapes and transcripts. (This paper does not attempt to deal with these issues, or with interception that may be required for the technical operation of networks or for the purposes of regulatory authorities.)
3. Authorised interception must necessarily be carried out without the prior knowledge of the subjects. However, to confirm with principles of openness, transparency and accountability, there should be mechanisms to re-assure the public that interception powers are being used lawfully, appropriately and proportionally.
4. Such mechanisms should include:
   • record-keeping requirements
   • monitoring and auditing
   • periodic public reporting.
5. Record-keeping: Investigating agencies undertaking interception should keep appropriate records to establish the lawful authority and justification for each interception. Record keeping obligations may also apply to the telecommunications provider involved.
6. Monitoring and Auditing: A body independent of the investigating agency should have the role of checking compliance with interception laws, and have the necessary powers, capabilities and resources to undertake inspections.
7. Public reporting: Reports should be made publicly available, at reasonable intervals, documenting the scale and characteristics of interception activity, so as to indicate the overall level of intrusion into privacy. Reports may include statistics such as those on:
   • the numbers of authorised interceptions and their duration
     
   • the numbers of applications for interception authority denied
   • authorisations having special features (such as authorising entry onto private premises) or conditions
   • the numbers of communications intercepted and of people identified
   • different methods of interception (such as telephone, fax, e-mail, pager, voice mail)
   • the general classes of places where interceptions were undertaken (such as business, private homes, cars)
   • the nature of the offences under investigation
   • the outcome and effectiveness of interceptions such as cases where no evidence of wrongdoing was found, prosecutions were commenced, transcripts were entered into evidence and convictions were secured
   • the costs of interception.
   Information in reports should be presented in a clear and meaningful manner, and should include illustration of trends and significant features of interception activity during the reporting period.