Terrorists’ use of electronic communications
Law enforcement agencies monitoring of terrorists’ communication
As communications technology advances, law enforcement agencies must constantly develop systems and protocols to monitor terrorists’ use of electronic communications in a manner that balances both the need to protect citizens and individual’s data protection. Concern was raised following the Edward Snowden revelations on how the US’ National Security Agency and the UK’s General Communications Headquarters were monitoring citizens’ communications in 2013.
Since then most western states have introduced legislation aimed at ensuring a balance between both those needs. In the seven years since those revelations, technology has advanced with terrorists taking advantage of ever more sophisticated methods of electronic communication and, as such, law enforcement agencies have to develop equally sophisticated methods of communications surveillance with the state legislators having to ensure that statutes granting agencies powers to carry communications surveillance does not become dated.
An example of this was the UK’s Investigatory Powers Act 2016 that repealed parts of the Regulation of Investigatory Powers Act 2000 as it was seen as an analogue law for a digital age. The 2016 Act allows the security services and the police powers to monitor communications use ranging from targeted interception and examination warrants on specified persons or organisations to more controversial powers such as authorisation to obtain communications data from internet and communications service providers, and, equipment interference/examination warrants (i.e. lawful hacking) on specified persons, organisations or locations. When granting such warrants, the judiciary must ensure the powers are necessary in order to protect citizens’ rights. In determining if the powers are necessary, the most pertinent grounds in terrorism investigations is if it is in the interests of national security, will prevent or detect crime, or, is in the interests of public safety.
Other states have similar legislative provisions to assist law enforcement agencies investigating terrorist related activity. Examples include the US’ Freedom Act 2015 that was introduced after the Snowden revelations to tighten up protection of citizens’ rights and prevent abuse of powers by the agencies. Australia’s Telecommunications (Interception and Access) Act 1979 was amended in 2016 to allow warrants being granted to law enforcement agencies to intercept communications that are or is likely to be used by a person engaged in activities prejudicial to security, and this can also include specified premises where it is suspected such activity is occurring. Canada’s Anti-Terrorism Act 2015 provides powers to access communications related to activities provided the provision of those powers are consistent with the Canadian Charter of Rights.
Even the EU introduced the 2016 Directive on protecting personal data processed for the purposes of preventing, investigating, detecting or prosecuting criminal matters, that includes terrorist offences As discussed above, with terrorists, groups and organisations communicating at international level, it is important that the law enforcement agencies operate under similar legislative provisions to facilitate intelligence exchange that could be admissible as evidence in other states’ jurisdictions be it between the Five Eyes states of Australia, Canada, New Zealand, the UK and the US or between these states with EU Member State law enforcement agencies.
While there is understandable concern, certainly that expressed by various human rights groups, that law enforcement agencies are being given wide powers to ‘snoop’ on citizens’ communications, due how terrorists and terrorist groups are increasingly being more sophisticated in how they use and exploit various methods of electronic communication these powers are necessary. The legislative powers are fettered having due regard to human rights issues related to surveillance. As the main aim of counter-terrorism investigators is to prevent attacks from occurring, wide powers are needed to ensure the most important human right, the right to life, is preserved for all in society.
Dr David Lowe runs his own consultancy business providing expert witness work in terrorism and security and policing. He is also a senior research fellow at Leeds Beckett University’s Law School. You can read the issues he raises in more depth in his books ‘Terrorism and State Surveillance of Communications’ and ‘Terrorism: Law and Policy’ both published by Routledge in 2019 and 2018 respectively.