Franz Büllingen, Annette Hillebrand
Sicherstellung der Überwachbarkeit der Telekommunikation – Ein Vergleich in den G7-Staaten
Nr. 245 / Juli 2003
Summary
Most countries enable their law enforcement and national security agencies to intercept telecommunication services under effectively controlled conditions. However lawful interception is only permitted due to defined circumstances. Gathered and stored data have to apply strictly to aimed purposes.
The framework of applicable law has substantially changed within the last few years. Due to the liberalisation of telecommunications markets, the market entry of new actors like internet service providers and the wide spread of digitized services, e.g. e-mail or IP-telephony the existing legal framework obviously had to be adapted to the new challenges in order to grant authorised law enforcement.
The change of the legal framework has been accompanied by intense and controversial debates on how actors should be obliged to establish procedures for responding to appropriate authorised requests. Criticisms of enterprises especially aime(d) at obligations to provide and implement the appropriate technical and organisational requirements, which are regarded as highly cost intensive.
Keeping this background in mind our study provides an overview on the existing framework in France, Italy, the United Kingdom, the USA, Canada and Japan in order to compare legal and practical measures. It focuses on the legal premises, the obligations of telecommunications service providers, the prerequisites and practices of lawful interception, the means of controlling and sanction as well as all aspects of the reimbursement of costs.
From today's perspective almost all G7-states have agreed on a generic set of requirements for legal interception differentiating only in details. Countries like Japan and Canada just have decided to implement rules on lawful interception respectively started to update their measures due to the modernisation processes in telecommunications technologies. Others like the US and Germany have finished their implementation processes regarding concrete technical and organisational measures, meanwhile the United Kingdom recently put a new legal framework into place, but the implementation of definite procedures is still at the beginning. In France and Italy regulation on lawful interception is less detailed than in the other countries.
Although the above mentioned states have set up a legal framework, the process of implementation and adoption of practices related to the internet face a lot of obstacles, e.g. the cultural background, influencing the national style of controlling measures and the handling of stored data. Furthermore the availability of information on lawful interception procedures differentiate between the countries. Whilst the US, Germany, the United Kingdom and Canada provide a more or less open access to relevant information, France and especially Italy are quite restrictive in permitting access to all information dealing with legal interception capabilities, procedures and results. [full version only available in German]
Diskussion Paper is available for download.