Privy Council Review of intercept as evidence: report - Official ...

telephone is being set up, any part of that circuit can be accessed and the
whole contents of the call copied to the intercepting agency. In times past
that was done by connecting a recording device direct to the wires the target
was using. Nowadays more sophisticated methods are used ***. But the
principle is the same. ***
115. This model breaks down when individual circuits are replaced by IP
networks. *** some interception will still be possible through the switch by
which the particular target is connected to the IP network. But access even
there will typically only allow interception of the raw IP data going to that
target’s location; subsequent processing is then required to interpret and
separate specific communications, if the interceptor is to stand any chance of
making sense of them. ***
116. The problem becomes all the harder when the predicted growth of the
overall telecommunications business are taken into account. The needle the
interceptor is searching for will be hidden in an ever larger haystack.
117. There are no recognised standards for the services that will be offered,
so almost every different service will require its own bespoke processing
capability. Resources will never be sufficient for this to be possible; instead
the authorities will need to prioritise, and put in place processing for those
services which their targets already use or are likely to use in the future. This
necessary prioritisation makes the interception system vulnerable to
unforeseen changes in target behaviour. There will inevitably be gaps in
capability; if targets become aware of them, it will be quick and easy for them
to move away from services that the system can process, and instead use
services it cannot. Then for a period interception will be unable to reach these
targets, until new processing can be devised and put in place. At this point
the cycle can start all over again.
118. To meet this challenge the Home Office is leading a Government-wide
Interception Modernisation Programme ***. The Programme has been set up,
and is beginning to design potential solutions, on the basis of existing law,
under which intercepted material is not available for use in evidence. The
scale of change required to make its product useable as evidence is not
known, but delays, increased risk and increased cost seem likely.
119. ***
120. There are a number of practical difficulties with using Internet Protocol
material as evidence.
Putting multiple inputs together will demand a degree of sophisticated
analysis by the intercepting agency, which may not be easy to explain
to a jury. This will of course be over and above interpreting the targets’
use of veiled and allusive speech, obscure dialects etc.
If any one of those inputs is missing ***, it will be easy for the defence
to argue that the missing content would provide an innocent
explanation of the apparently incriminating contents of the others.
***
Chapter VI
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