Interception Of Communications Research Articles

Digital Surveillance, Meta Data and Foreign Intelligence Cooperation: Unpacking the International Right to Privacy

Anti-terrorism measures have led to increasing digital interception of private communications and to mass surveillance, the extent of which had been unseen until recently. When a few years ago the discussion started about how to deal with this phenomenon, the call for a new legal instrument quickly erupted. However, this the article demonstrates that this is not a blind spot of international law. Article 17 of the International Covenant on Civil and Political Rights guarantees the right to privacy and the protection against unlawful interference with correspondence. The Human Rights Committee which is entrusted with the interpretation of the Covenant has taken recent cyber-related developments as an opportunity to unpack the right to privacy in the context of its state reporting procedure. The article by Anja Seibert-Fohr describes and systematizes the Human Rights Committee’s interpretation of Article 17 of the International Covenant on Civil and Political Rights with respect to the protection of privacy against digital surveillance, meta data retention and foreign intelligence cooperation and outlines the respective legal standards. The author demonstrates that the Covenant provides the necessary legal ground to confront new technological challenges without ignoring the exigencies of the altering security situation. Safeguard procedures play a central role in this undertaking. The Committee, having identified various shortcomings in national legal frameworks, has specified the necessary safeguards to effectively protect the right to privacy against arbitrary interference. It has also clarified the territorial scope of protection under the Covenant which is not limited to domestic measures but also extents to transnational surveillance and digital intelligence sharing. The Committee thus has specified the meaning of Article 17 and laid important groundwork for the consideration of cyber-related issues. The author concludes with an outlook, describing new issues which the Committee will need to consider in the future, and makes general recommendations for the future conceptualization of the right to privacy in the digital age more generally.

Access to Justice for Communications Surveillance and Interception: Scrutinising Intelligence-Gathering Reform Legislation

By analysing intelligence-gathering reform legislation this article discusses access to justice for communications interception by the intelligence and security services. In the aftermath of the Snowden revelations, sophisticated oversight systems for bulk communications surveillance are being established across the globe. In the Netherlands prior judicial consent and a binding complaint procedure have been established. However, although checks and balances for targeted communications interference have been created, accountability mechanisms are less equipped to effectively remedy indiscriminate interference. Therefore, within the context of mass communications surveillance programs, access to justice for complainants remains a contentious issue.

Haphazard, enhanced haphazard and personalised anonymisation for privacy preserving data mining on sensitive data sources

Privacy preserving data mining is a fast growing new era of research due to recent advancements in information, data mining, communications and security technologies. Government agencies and many other non-governmental organisations often need to publish sensitive data that contain information about individuals. The important problem is publishing data about individuals without revealing sensitive information about them. A breach in the security of a sensitive data may expose the private information of an individual, or the interception of a private communication may compromise the security of a sensitive data. The objective of the research is to publish data without revealing the sensitive information of individuals, at the same time the miner need to discover non-sensitive knowledge. To achieve the above objective, haphazard anonymisation, enhanced haphazard anonymisation and personalised anonymisation are proposed for privacy and utility preservation. The performances are evaluated based on vulnerability to attacks, efficiency and data utility.

Institutionalising the War Against Corruption: New Approaches to Assets Tracing and Recovery

PURPOSE – The United Nations Secretary-General Antonio Guterres recently revealed that the flow of illegal funds, money-laundering and tax evasion, cost Africa fifty billion dollars every year. The Stolen Asset Recovery Initiative (Star) in Washington estimates up to forty billion dollars is lost each year to developing countries through corruption and only five billion dollars was returned in the 15 years till 2011. Most is never found. These revelations call for an entirely new approach/direction to be taken for the identification and recovery of criminal assets. The approach should be one that can curtail the flow of illegal funds, money-laundering and tax evasion. This paper critically analyses the existing framework on assets tracing and recovery in Nigeria. It will thereafter discuss the measures adopted by developed countries which Nigeria can use to effectively trace illicit assets. DESIGN/METHODOLOGY/APPROACH – The analysis took the form of a desk study, which analyzed various documents such as the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Economic and Financial Crimes Commission (Establishment) Act, 2004, the Administration of Criminal Justice Act 2015, the Advance Fee Fraud and other Fraud Related Offences Act 2006, the Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act, 2004, the United Kingdom Proceeds of Crime Act 2002 (as amended), the United Kingdom Investigatory Powers Act 2016, the final rules issued by FinCEN under the Bank Secrecy Act to clarify and strengthen customer due diligence requirements, the Mutual Assistance in Criminal Matters Bill, 2016, the Proceeds of Crime Bill 2017 and the Financial Action Task Force Recommendations 2012. FINDINGS – This paper determined that the Nigeria asset recovery scheme is likely to be more effective if the following recommendations are implemented: I. The Proceeds of Crime Bill, 2017 should be given accelerated consideration in the Nigerian National Assembly based on its urgency and significance for the anti-corruption war. Civil (Non-Conviction Based) Judicial Forfeiture is an essential tool in the fight against corruption to deprive offenders of the proceeds of their criminal conduct; to deter the commission of further offences; and to reduce the profits available to fund further corrupt or criminal enterprises. II.The Federal Government of Nigeria should introduce a Bill to the National Assembly that would provide a clear framework for the use of investigatory powers by law enforcement, the security and intelligence agencies and other public authorities. This includes the interception of communications, the retention and acquisition of communications data, the use of equipment interference, and the retention and use of bulk data by the security and intelligence agencies. The Bill must establish a number of safeguards against the arbitrary or unlawful use of investigatory powers by the Executive. The United Kingdom’s Investigatory Powers Act 2016, for example, established a number of safeguards for the retention and acquisition of communications data. Authorisations for obtaining communications data will have to set out why accessing the communications data in question is necessary in a specific investigation for a particular statutory purpose, and how it is proportionate to what is sought to be achieved. III. The Central Bank of Nigeria should mandate financial institutions in Nigeria to use the blockchain technology for know your customer purposes. The blockchain technology will aid law enforcement agents to identify and trace proceeds of criminal activity. IV. The Central Bank of Nigeria should issue a rule requiring the financial industry to identify the real owners of companies and propose a bill that would require companies to report the identities of their owners to the federal government. V. Bureau De Change Operators, Estate Agents, High Value Dealers e.g. dealers in precious metals and precious stones and Gambling Operators should be effectively supervised and monitored for compliance with anti-money laundering and countering the financing of terrorism (AML/CFT) requirements, namely customer due diligence (CDD), recordkeeping, and reporting. This should be performed on a risk-sensitive basis. VI. The Mutual Assistance in Criminal Matters Bill, 2016 should be given accelerated consideration in the Nigerian National Assembly based on its urgency and significance for assets tracing and recovery. A National Mutual Legal Assistance Legislation is necessary to address issues that treaties generally do not cover such as the procedures for obtaining a search warrant, compelling the attendance of a witness, or appealing a decision of judicial or law enforcement authorities. RESEARCH LIMITATIONS – This paper critically analyses the existing legal and regulatory framework for assets tracing and recovery in Nigeria and suggests new ways to improve the asset tracing/recovery scheme in Nigeria. ORIGINALITY/VALUE – Previous research papers have extensively discussed the problems faced with assets tracing and recovery from a prohibitive and investigative stand point. This paper will discuss the topic from a preventive stand point with little focus on investigative mechanisms.

Los efectos de la prueba ilícita en Colombia: Caso miti – miti

El presente artículo contiene un estudio acerca de la prueba ilícita, partiendo del recuento de diversas teorías que se han manejado en el mundo a través de la historia, para centrarse en el manejo que se ha dado al tema de la prueba ilícita en Colombia, como Estado Social de Derecho, garante de derechos fundamentales de significativa importancia como el debido proceso. Se analiza y reflexiona acerca de un caso de trascendencia nacional como fue el denominado “miti- miti” generado por la interceptación de una comunicación telefónica entre dos ex ministros, quienes pretendían adjudicar unas radiofrecuencias sonoras sin el cumplimiento de la normatividad vigente para dicho proceso, facilitando abordar con claridad lo relacionado con la exclusión de la prueba ilícita cuando se vulneren derechos fundamentales, así mismo la existencia de algunas excepciones a la hora de aplicar la regla de exclusión, haciendo énfasis en la Sentencia SU 159 de 2000 M.P: Dr. Manuel José Cepeda Espinosa.

How the Uber & Lyft Case Provides an Impetus to Re-Examine Buyer Power in the World of Big Data and Algorithms

For competition lawyers, Uber is an interesting subject to study. Not only does Uber change the dynamics of the transportation market but it also raises interesting competition law questions. Last year for example, a class action suit against Uber in New York raised the question whether Uber is possibly arranging a hub and spoke cartel amongst the drivers by coordinating their selling prices. 2017 has continued to be litigious and interesting. One of these new class action lawsuits might also raise thought-provoking antitrust issues related to big data and buyer power. Uber, the maverick firm that revolutionized passenger transportation services across the world has been now sued over its alleged use of its “Hell” software before the U.S. District Court for the Northern District of California filed on April 24th, 2017. The suit alleges a breach of privacy laws due to interception of private communications and unfair competition. This software apparently allowed Uber to track Lyft drivers, its main competitor, create fake Lyft accounts, determine which drivers drove for both companies, and “execut[e] a plan meant to entice double-appers to drive exclusively for them”. In this paper we explore such behaviour from a different perspective, the antitrust one. The focus of this paper is on exploring relevant behavior from a buyer power-oriented focusing on reverse rebates and overbuying, while not engaging in a concrete analysis of Uber’s conduct. This analysis provides us with the opportunity to re-explore traditional antitrust concepts, anchored on the purchasing of raw material, in the data and algorithm driven world, in particular, how companies can use big data in anticompetitive strategies, such as granting supra-competitive bonuses, overbuying, and raising rival’s costs through overbuying input.

Monitoring, interception and Big Boss in the workplace: is the devil in the details?

This article discusses the opposing dynamics in the modern workplace environment, specifically employees’ expectations of e-privacy and employers’ interception and monitoring of electronic communications. In terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 employees must take prior notice of or consent to the interception and monitoring of their e-communications. The article focuses on the extent to which click-wrap agreements and hypertext or XML links to e-workplace policies could meet these requirements.

O protagonismo dos sistemas de tecnologia da informação na interceptação telefônica: a importância da cadeia de custódia

As mudanças tecnológicas levaram ao processo penal novas formas de obtenção de informações, dentre elas, a interceptação das comunicações telefônicas. A Lei no 9.296/96 introduziu, nesse subsistema probatório, novos atores, que não existiam no sistema penal tradicional, os quais interferem diretamente na produção da informação valorável pelo julgador. A lei é silente quanto à forma de execução da medida, bem como do rastreamento da informação, relegando tal tarefa às empresas de tecnologia da informação. Temendo os riscos associados a uma possível produção de evidências defeituosas, o presente trabalho versa sobre a importância da cadeia de custódia como garantia de rastreabilidade e fiabilidade. Com o intuito de conhecer o rito para obtenção da informação por meio da interceptação telefônica e da constatação a respeito de sua idoneidade, aliou-se um estudo teórico-bibliográfico à análise dos dados sobre esse meio de obtenção de prova fornecidos pelo CNJ, seguida de análise dos sistemas de tecnologia da informação desenvolvidos para execução da medida de interceptação das comunicações.

User-Centric Key Entropy: Study of Biometric Key Derivation Subject to Spoofing Attacks

Biometric data can be used as input for PKI key pair generation. The concept of not saving the private key is very appealing, but the implementation of such a system shouldn’t be rushed because it might prove less secure then current PKI infrastructure. One biometric characteristic can be easily spoofed, so it was believed that multi-modal biometrics would offer more security, because spoofing two or more biometrics would be very hard. This notion, of increased security of multi-modal biometric systems, was disproved for authentication and matching, studies showing that not only multi-modal biometric systems are not more secure, but they introduce additional vulnerabilities. This paper is a study on the implications of spoofing biometric data for retrieving the derived key. We demonstrate that spoofed biometrics can yield the same key, which in turn will lead an attacker to obtain the private key. A practical implementation is proposed using fingerprint and iris as biometrics and the fuzzy extractor for biometric key extraction. Our experiments show what happens when the biometric data is spoofed for both uni-modal systems and multi-modal. In case of multi-modal system tests were performed when spoofing one biometric or both. We provide detailed analysis of every scenario in regard to successful tests and overall key entropy. Our paper defines a biometric PKI scenario and an in depth security analysis for it. The analysis can be viewed as a blueprint for implementations of future similar systems, because it highlights the main security vulnerabilities for bioPKI. The analysis is not constrained to the biometric part of the system, but covers CA security, sensor security, communication interception, RSA encryption vulnerabilities regarding key entropy, and much more.

A Mutual Legal Assistance Case Study: The United States and France

This article provides a case study involving France and the United States for a topic of growing importance – how to reform the outdated system of “Mutual Legal Assistance” (MLA). Mutual Legal Assistance occurs when one country (such as France) requests evidence held in another country (such as the US) for criminal prosecution, frequently pursuant to a Mutual Legal Assistance Treaty. The article is part of the broader Georgia Tech Cross-Border Requests for Data Project, addressing MLA reform. The topic has reached a new level of prominence driven by two technological developments: (1) globalized communications, with data often stored abroad by a cloud service provider; and (2) increased use of encrypted communications, so many local wiretaps are ineffective. The article, building off our prior research on how French criminal procedure operates, examines French and US law in detail to understand the substantive standards that apply to government access to data for criminal prosecutions. Part III explains the US regime, founded on Fourth Amendment protections against unlawful searches and seizures. The United States also has created a multi-tiered set of standards, with different rules, for instance, for: basic subscriber information; metadata such as to/from information; content of stored records; and interception of electronic communications. Part IV explains the French regime. As a general theme, the French system has a tradition of relying on the acts that can be performed at each stage of the investigation, as well as the investigative authority of a particular actor, such as a magistrate. In contrast, the US system relies more heavily on distinct rules for different categories of electronic evidence. Part V explains the current France/US MLA regime. Part VI turns to possible MLA reform, with the proposed reform mechanism of an amendment to the U.S. Electronic Communications Privacy Act. This amendment would provide that the relatively strict US laws would no longer apply to some French requests for the content of communications held by US companies. We conclude that the France/US relationship is a good case study for MLA reform, given the large differences in criminal procedure and substantive standards for access to evidence. Building on choice of law principles, the article identifies what factors support current MLA procedures and which ones instead suggest the need for reform.

The Right to Privacy in the Digital Age

Recent years have seen the right to privacy, particularly as it pertains to the surveillance and interception of communications, transform from a much-neglected human rights issue to the focus of multiple UN General Assembly and Human Rights Council resolutions. Since March 2015, it has been the subject of a dedicated United Nations special procedures mandate. This policy note seeks to chart the long overdue and rapid progress of the right to privacy to the top of the agendas of regional and international human rights mechanisms. In particular, the note records the role of civil society in supporting the right to privacy’s recent promotion. It identifies the status of norm development around surveillance issues and outlines the major unresolved questions confronting human rights mechanisms for the future.

Uloga i značaj posebne dokazne radnje tajnog nadzora komunikacija u istrazi krivičnog dela terorizma

Terrorism is a multidimensional social phenomenon threatening the vital values of modern society. The political dimension of terrorism makes it difficult to reach a consensus on the generally accepted definition of terrorism. Being a threat to society, terrorism is regarded as a highly serious criminal act within the group of political criminal acts, and it is recognized as such in most legislations worldwide. In order to make the detection and evidentiary proceedings pertaining to criminal acts of terrorism adequate and efficient, application of special evidence collecting procedures is essential. The most prominent among them is interception of communications. On the other hand, interception of communications interferes with the right to privacy. It is therefore necessary to properly regulate the procedure for the implementation of interception of communications for criminal offenses of terrorism. This paper gives the theoretical definition of the term terrorism, criminal acts of terrorism, and the importance of interception of communications in combatting terrorism.

Internet as a method of trolling offensive intelligence operations in cyberspace

The paper analyzes Internet trolling as an operational intelligence activity, and the challenges it presents for national security, as well as the assessment of possible strategic protection of national cyberspace. This problem arises since collecting the data through automated programs eliminates guarantees of ethical grounds for their gathering in terms of clear reason, integrity of motives, proportionality of methods and the relevant authority. The basic thesis is that intelligence gathering on the Internet may be used against the basic values of states. Functionally, due to characteristics of the targets, trolling is conducive for collecting strategic information related to individual and collective attitudes and their contextualization; or the economic entities and critical infrastructure of national crisis management system, as well as for the influence on the political decisions. Also, because of the network properties, it is suitable for identifying, locating of potential sources of information and gaining their cooperation on the basis of motivation to support the objectives. The tasks of cyber data collection include psychological profiling, imposing attitudes, conducting secret surveillance on a massive scale and interception of communications. Internet trolling enables an access to primary data on the territory of other states, and thus it is suitable for secret and covert “installation” in the online community; for organized attack to infiltrate the government systems; for military and political interests; and for sabotaging various national infrastructure, communication and other systems. Structurally, the use of trolling as a mean of collecting data stems from the military development, today applied within the doctrine of “Full Dimension Operations”. It is conducted in an organized manner, with legend and rules of secrecy, so the trolls are agents of authorized agencies. Intelligence systems, like the “Five Eyes” (FVEY - the USA, GB, Australia, Canada and New Zealand) have software tools, available IP addresses and networks of computers which run programs difficult to identify (botnet), which allows them to troll undetectably. The methods and tasks revealed through structural and functional analysis enable the induction of threats and challenges for national security of other states. The principal challenges are the consequence of automatized methods and are democratic in nature. The primary risk for national security is the fact that it involves secret and organized efforts by other states to influence public opinion and dehumanization. Another is due to the fact that agencies of some countries have a capacity to secretly monitor communications in the cyberspace of other countries. Intelligence trolling can have an online operation against a certain state as an immediate goal, like misinformation and disinformation, creating HUMINT networks, or cyber attacks on critical infrastructure. With an aim to master the Internet, the FVEY agencies are trying to invade every possible system on the global net, searching to gain access to further systems. The strategic protection of national security in cyberspace requires a multi-dimensional approach, within the framework of the national security strategy. It must include science and research of the cyber space and social networks, as the preconditions; education for the use of the Internet at all levels, quality education and public information systems, in sense of prevention; and the criminalization of fraudulent messages and training of the judiciary for prosecution, in terms of repression.

Urgent Reforms Taking Their Time in the Republic of Macedonia

Since 2001, the Republic of Macedonia had gone through several waves of international and national actions, which resulted in requests of the international community, primarily by the European Union, for systemic reform processes. The first wave came with the Ohrid Agreement, which brought armed ethnic-based conflict to an end. The second one emerged due to the usual association and accession commitments of a candidate state since 2005 and implementation of the Road Map for Visa Liberalisation between February 2008 and July 2009. The third wave came out of a severe political crisis in 2015, which had revealed a series of systemic and democratic deficiencies – from illegal interception of communications and political pressure against the judiciary, to violations of media freedoms and principles of fair elections. In June 2015, a Senior Expert’s Group summarised a set of recommendations for the European Commissions in a document titled: Urgent Reform Priorities for the Former Yugoslav Republic of Macedonia. This paper analyzes Macedonian slow path of reforms, affected by deficient inter-ethnic confidence, political tensions, decentralisation, administrative and political culture in the Macedonia and shortcomings within the of the rule of law.

Three National Security Legislative Regimes in South Africa

This paper investigates the three key legislative regimes posing problematic issues for ‘open democracy’ around national security in South Africa: (1) the information classification regime – the Protection of Information Act 84 of 1982 and its intended replacement, the Protection of State Information Bill/Act, (2) the regime allowing for the actual collection of much of the electronic communications from which the classified information is distilled – the Regulation of the Interception of Communication and Provision of Communication-Related Information Act 70 of 2002, and (3) the national security regime truly hanging over from the apartheid era – the National Key Points Act. These three legislative regimes are key legal elements of the larger constitutional framework governing national security in South Africa.

Chilling Effect

Despite reports of widespread interception of communications by the UK government, and revelations that police were using surveillance powers to access journalists’ communications data to identify sources, regional newspaper journalists show few signs of adapting source protection and information security practices to reflect new legal and technological threats, and there is widespread ignorance of what their employers are doing to protect networked systems of production. This paper argues that the “reactive” approach to source protection that seeks to build a legal defence if required, is no longer adequate in the context of workforce monitoring, and that publishers need to update their policies and practice to address ongoing change in the environment for journalists and sources.

Inside the Machine: Constitutionality of India’s Surveillance Apparatus

"(This article was published prior to the Puttaswamy judgement) This paper seeks to analyse the nuances of some of those laws and tools that enable the State to keep a constant watch over its citizens’ activities. It also attempts to test the validity of the State’s surveillance powers against the principles of liberty and justice enshrined in the Indian Constitution. In doing so, the author aims to challenge the archaic foundations of Indian surveillance laws while drawing attention to areas that are in need of re-examination or, in some cases, complete overhaul. Part II of the paper is a brief exposition of the various laws and rules currently in effect that enable the State to intercept communications. This part aims to highlight the systemic shortcomings that are common to all legislations pertaining to surveillance. Part III traces the development of these laws across modern history in an attempt to unearth and examine the bases of the power of interception. This exercise aims to bring to light the severe lack of legislative discourse that surveillance laws have been subjected to in India. It also seeks to highlight the dire necessity of immediate legislative re-examination of these laws. Part IV attempts to explore the incongruity between the powers of interception of communications and the fundamental freedoms assured in the Constitution. It contends that surveillance in its current form may not constitute a reasonable restriction envisaged under Article 19(2) of the Constitution. Part V examines the unfeasibility in implementation of these laws and explores their shortcomings that inhibit the actualisation of constitutional goals. Part VI looks at similar laws and rules in force in other developing and developed nations. This part highlights surveillance practices followed in these countries that can feasibly be adapted to an Indian context to make our laws more progressive."

The interception of communication in France and Italy – what relevance for the development of English law?

This article examines the distinctive features of the interception of communications regimes in the jurisdictions of France and Italy, focusing only on telephone tapping provisions. This comparative study focuses on the actors involved in the interception of communications either for authorisation or execution purposes, as well as its scope and duration. Finally, the article will attempt to assess the relevance of foreign experiences for the development of English law. The potential use of the information obtained as evidence at trial will be thus particularly relevant to the discussion.

The Regulation of Cyber Crime in Albania in the Framework of Harmonization of Internal Legislation with the European Legislation

The big social dangerousness of cybercrime and the increase of computer misuse, demand that his problem has to be addressed on certain law provisions. So, new interventions in penal codes are needed, interventions that will deal with this activity. In order to prohibit computer crime, many states are trying to find more efficient tools, methods and acts in this direction. Firstly, it is the juridical-penal regulation that has to be done, seeing the problem as a juridical protection fro the unauthorized interventions in computer systems. There has been discussion among low-making structures, with the approval of laws that has to do with the incrimination of the act of illegal intervention, concerning the moment when that intervention starts to be considered as a penal act. So, different states, see it as a penal act from the moment of the very first unauthorized intervention and some others from the moment that the smallest damage is caused. The aim of this paper is to make an overview of the regulation of cyber crime in Albania in the framework of harmonization of internal legislation with the european legislation. In recent years, Albania has worked for the establishment and implementation of international standards in the fight against organized crime, money laundry and corruption. Enough laws function in the national legislation such as: the law for electronic assignment, classified state information, protection of personal data, electronic communication, communication interception, for books, mail service etc. DOI: 10.5901/ajis.2016.v5n1p127

Communications interception: UK report seeks legal reform

British spies’ bulk collection of citizens’ phone and internet metadata doesn't breach EU law, a new government report says. However, the document does recommend an overhaul of the complex UK law governing the field.