THE LAW REFORM COMMISSION

OF HONG KONG

REPORT

ON

PRIVACY : REGULATING THE

INTERCEPTION OF COMMUNICATIONS

DECEMBER 1996

The Law Reform Commission was established by His Excellency the Governor in Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Attorney General or the Chief Justice.

The members of the Commission at present are:

The Hon Mr J F Mathews, CMG, JP (Attorney General) (Chairman)

Mr Tony Yen (Law Draftsman)

The Hon Mr Justice J Chan

Mr Eric Cheung

Professor Yash Ghai, CBE

Professor Kuan Hsin-chi

Dr Lawrence Lai

Mr Andrew Liao, QC

Mr Gage McAfee

Mr Alasdair G Morrison

Mr Robert Ribeiro, QC

Professor Derek Roebuck

Professor Peter Wesley-Smith

Mr Justein Wong Chun, JP

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

20/F Harcourt House,

39 Gloucester Road,

Wanchai,

Hong Kong.

Telephone: 2528 0472

Fax: 2865 2902

E-mail: reform@legal.gcn.gov.hk

A summary of this report, and other information on the Commission, can be found on the Internet at: http://www.info.gov.hk

Mr Godfrey K F Kan, Crown Counsel, was principally responsible for the writing of this Commission report.

The Law Reform Commission of Hong Kong

Report on

PRIVACY: REGULATING THE INTERCEPTION

OF COMMUNICATIONS

CONTENTS

Introduction

Terms of Reference

1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of “privacy”. The Commission’s terms of reference are as follows:

“To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters:

(a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;

(b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong;

(c) intrusion (by electronic or other means) into private premises; and

(d) the interception of communications, whether oral or recorded;

but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence.”

2. The Law Reform Commission appointed a sub-committee to examine the current state of legislation and to make recommendations (“the sub-committee”). The members of the sub-committee are:

The Hon Mr Justice Justice of Appeal

Mortimer (Chairman)

Dr John Bacon-Shone Director, Social Sciences Research Centre,

The University of Hong Kong

Mr Don Brech Principal Consultant

Records Management International Limited

Mrs Patricia Chu Deputy Director (Services)

Social Welfare Department

Mr A F M Conway Chairman

Great River Corporation Limited

Mr Edwin Lau Assistant General Manager (Retail Banking)

Hongkong & Shanghai Banking Corporation

Mr James O’Neil Deputy Crown Solicitor

Attorney General’s Chambers

Mr Peter So Lai-yin General Manager

Hong Kong Note Printing Limited

Prof Raymond Wacks Professor of Law and Legal Theory

The University of Hong Kong

Mr Wong Kwok-wah Bureau Chief

Asia Times

3. The Secretary to the sub-committee was initially Mr Mark Berthold, Consultant. He was succeeded by Mr Godfrey Kan, Crown Counsel, in March 1996.

4. The issues raised at items (a) and (b) in the terms of reference were addressed in the Law Reform Commission report on Reform of the Law relating to the Protection of Personal Data published in August 1994. Most of the recommendations of that report were adopted with the enactment of the Personal Data (Privacy) Ordinance (Cap. 486) on 3 August 1995. This report deals mainly with item (d).

Surveillance and interception of communications

5. Although this report mainly deals with the interception of communications, both intrusion into private premises and the interception of communications impinge on an individual’s right to privacy. An attempt is therefore made in this introduction to explore the relevant privacy concerns. This is followed by an explanation of how the new surveillance technologies affect an individual’s privacy.

6. It should be made clear at the outset that the references to “intrusion (by electronic or other means) into private premises” and “the interception of communications” in the terms of reference are not separate; they overlap in some situations. For example, it is now possible to “read” electronic mail by monitoring the radiation emitted by a word processor by remote means. This could fall under either (c) or (d) in the terms of reference. Similarly, the use of a listening device planted in a telephone handset or speaker phone is covered by both (c) and (d); the planting of the listening device necessitates an intrusion into private premises and the use of the device facilitates the interception of communications transmitted by telephone lines.

7. Although this report makes frequent reference to new technologies affecting privacy, a regime which regulates surveillance activities should not focus on such technologies. Regulation must be founded on general principles. Nonetheless, an awareness of new applications of technology provides a means of checking that any proposed regulatory framework effectively covers the various means of intrusion.

Relationship with data protection

8. In our consideration of the first part of the reference, we examined the protection of personal data. The principal focus of data protection is the regulation of data relating to the individual, whether the data are collected from the individual or from a third party. When data are collected or acquired, they become subject to the application of the data protection principles. The regulation of intrusion upon privacy focuses on protecting the individual at the stage when information is acquired about him, whether or not it is captured as recorded data.

9. Insofar as most surveillance and interception of communications will be conducted with the specific purpose of collecting data records, a data protection regime represents a significant source of control. Nonetheless, as Wacks points out, although of practical significance, the collection of personal data is not the primary concern arising from the use of surveillance techniques, but rather that the surveillance process itself constitutes an interference with the privacy of the individual:

“My objection to being watched or to having my telephone tapped is not necessarily that ‘personal information’ about me has been obtained, for the activities that are observed or the conversations that are monitored do not necessarily involve ‘personal information’. Certainly, it is the main purpose of the intruder to obtain information about an individual, and some of the information may well be ‘personal’ ... . But it should be stressed that there is no necessary connection between the acquisition of ‘personal information’ and the individual’s interest in not being observed ... . When my telephone is tapped my principal objection is that there has been an intentional interference with my interest in seclusion or solitude.”¹

The relevance of privacy today

10. A number of developments in recent years have increased public awareness of privacy issues and the threats posed to privacy in daily life:

(a) The enactment of the Personal Data (Privacy) Ordinance (Cap. 486) in 1995 has brought privacy issues to the fore. Enforcement of the provisions of the Ordinance is likely to heighten awareness of the importance of protecting privacy and personal information.

(b) The rapid expansion of the Internet, and the resultant increase in the amount of personal information available on-line, has made the public more concerned about the privacy of their communications. Service companies are likely to use privacy as a competitive weapon in winning customers.²

(c) The growth in the use of electronic communications systems by industry has increased the need for security of those communications in such areas as banking and finance. Service carriers are aware that an inability to safeguard customer information will adversely affect customer relations and their business. Another concern is that of theft of proprietary information.

(d) The development of advanced communications networks is likely to be hindered unless service carriers can assure the public that there is adequate security for their communications. The President of the United States Telephone Association asserts that:

“If the public becomes skittish about using the public network for fear either that it is full of ‘back doors’ designed so that their local sheriff will be developing a dossier on them based on call set-up information, that fear will translate into reduced use of the system. The result will be the loss of billions of dollars in potential revenue, and along with that many of the jobs, the taxes, and the benefits that we anticipate from the information age.”³

Interception of telecommunications and data protection

11. The Australian Telecommunications Authority points out that the telecommunications industry has specific characteristics which include a global nature, high infrastructure costs, and rapidly developing technologies. It observes that “using telecommunications means for conveying personal information does not by itself comprise an issue of telecommunications privacy”.⁴ It recommends that measures to control the collection and use of personal data by means of telecommunications networks should accord with the data protection principles.

12. The Ontario Information and Privacy Commissioner usefully distinguishes three types of personal information collected and processed by telecommunications carriers or service providers:

• data obtained at the time of application to be connected to the network, including name and address for service and billing (customer information);

• data captured at the time a call is made, including number called and duration of call (transactional or billing information); and

• the content of the communication itself (the conversation or message).

13. The Commissioner argues that subscribers understand that customer and billing data will need to be collected by the service providers as an adjunct to the service. He points out, however, that subscribers would not regard it as reasonable for the content of the conversation or message to be subject to collection.

14. In the Hong Kong context, upon collection, those data will be subject to the application of the data protection principles pursuant to the Personal Data (Privacy) Ordinance (Cap. 486).⁵ Our task in this part of the reference is to consider protection against serious intrusions which supplements the more general provisions of the Ordinance.

Corporate privacy and individual privacy

15. Although we mentioned that our task can be seen as supplementing the provisions of the Personal Data (Privacy) Ordinance, our scope of enquiry is wider than the scope of the Ordinance. Our study will cover all types of surveillance and interception of communications whether the communications or activities in question involve personal data or commercial data. The content of a communication or the nature of the activities are irrelevant to the protection of an individual’s privacy. The privacy of the individual should be protected whether he is engaging in business or private affairs. Both business and personal communications should therefore be protected.

16. We are aware that commercial or personal data may be communicated between machines, with no human intervention. These communications should also be regulated because the machines are merely used as a medium to send and receive communications on behalf of two individuals. An example is where a message is recorded and stored for subsequent transmission between voice mail machines.

The interests requiring protection from intrusion

17. As was pointed out in our report on the protection of personal data, a key word in the terms of reference is “privacy”. In his comprehensive review, Wacks concludes that “in spite of the huge literature on the subject, a satisfactory definition of ‘privacy’ remains as elusive as ever.”⁶ We set out in the following paragraphs some of the more influential definitions of “privacy.”

18. The Justice Report defined “privacy” as meaning:

“that area of a man’s life which, in any given circumstances, a reasonable man with an understanding of the legitimate needs of the community would think it wrong to invade.” ⁷

19. Westin argues that privacy is:

“the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. Viewed in terms of the relation of the individual to social participation, privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small-group intimacy or, when among larger groups, in a condition of anonymity or reserve.”⁸

20. The Calcutt Committee defined it as:

“The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.”⁹

21. While the Younger Committee concluded that the concept of privacy could not be satisfactorily defined, it identified two principal privacy interests:

“The first of these is freedom from intrusion upon oneself, one’s home, family and relationships. The second is privacy of information, that is the right to determine for oneself how and to what extent information about oneself is communicated to others.”¹⁰

22. The Australian Law Reform Commission follows the approach suggested by McCloskey:¹¹

“Privacy is an ordinary language word, an ordinary language concept, not a finely honed philosophical or legal concept. This means that we may well find incoherences, inconsistencies in the ordinary concept such that, to be made clear, coherent, useful concept, it needs to clarified, modified, and made to be such. However, if this is done in a very radical way, the new concept may lose its relevance to the ordinary language concept. I suggest therefore that the concept be explicated as closely as possible to the ordinary usage concept, and then, if privacy so understood seems in certain respects not to merit, or not to lend itself to, legal protection and assistance, this be said.”

23. According to this approach, the first step is to ascertain the ordinary language meaning and thereafter determine whether the “privacy interests” so encompassed should, as a matter of policy, be protected. Relevant factors to this latter inquiry include the requirements of the International Covenant on Civil and Political Rights, the Hong Kong Bill of Rights Ordinance (Cap. 383) and the Basic Law.

Article 17 of the ICCPR

24. Article 17 of the International Covenant on Civil and Political Rights (“the ICCPR”) is replicated as article 14 of the Hong Kong Bill of Rights (Cap. 383, Part II). It provides:

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks. ”

25. The United Nations Human Rights Committee makes the following comments on this article:

• This right must be guaranteed against all arbitrary or unlawful interferences and attacks, whether they emanate from State authorities or natural or legal persons.

• The primary method of providing such protection is state legislation. No interference may take place except in cases envisaged by the law.

• The inclusion of the expression “arbitrary interference” is “intended to guarantee that even interference provided for by law should accord with the Covenant and should be, in any event, reasonable in the particular circumstances. ”¹²

26. Regarding the contents of such legislation as it relates to surveillance and interception, the Human Rights Committee states:

“Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorised interference must be made only by the authority designated under the law, and on a case-by-case basis. Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited ... . States parties are under a duty themselves not to engage in interferences inconsistent with article 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons.”¹³

27. The jurisprudence interpreting the similarly worded privacy provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”) is also relevant to the interpretation of article 17 of the ICCPR. Article 8 of the Convention provides:

“1. Everyone has the right to respect for his private and family life, his home and correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

28. The first limb of article 8 is in virtually identical terms to article 17 of the ICCPR, and both are derived from the privacy provision of the Universal Declaration of Human Rights. However, unlike the ICCPR provision, article 8 of the European Convention imposes an explicit obligation. Article 17 of the ICCPR instead focuses on protection from interference, but this presupposes an affirmative right to respect for privacy.

29. Article 17 specifically provides protection for family, home, and correspondence. These expressions are reasonably clear and apply to surveillance of domestic premises. The European Court held in Klass¹⁴ that “correspondence” encompasses all telecommunications. In ascertaining the scope of protection from surveillance in other spheres, recourse must be had to the word “privacy”. In contrast to article 17, article 8 of the European Convention refers to “private life” rather than “privacy”, but nothing turns on this. Klass ruled that telephone tapping not only constitutes an interference with the individual’s “correspondence” but also with his private life. As regards other methods of spying, the only case apparently reported on this aspect of article 17 dealt with surveillance of the applicant’s youthful participation in political activities.¹⁵ In her analysis, Doswald-Beck concludes that the ruling of the European Commission of Human Rights in that case appears to be premised on the assumption that secret surveillance of an individual other than by telephone tapping “may well amount to an interference with private life”.

30. It is also arguable that the principles laid down in Klass are not restricted to telephone tapping, although that form of surveillance is specifically dealt with. Certainly the language of the Court often speaks of “surveillance” generally, rather than the specific technique in question.

The Basic Law of the Hong Kong Special Administrative Region

31. As from 1 July 1997, the system for safeguarding the fundamental rights and freedom of Hong Kong residents will be based on the provisions of the Basic Law of the Hong Kong Special Administrative Region.¹⁶ The following provisions in the Basic Law indicate that arbitrary or unlawful intrusion into private premises will continue to be prohibited and that the privacy of communications may not be infringed except to meet the needs of public security or investigation of crime:

“Article 29 The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.”

“Article 30 The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.”

32. The Basic Law also guarantees that the provisions of the ICCPR will remain in force after the handover and will be implemented through the laws of Hong Kong. Any restriction imposed by the laws on the rights and freedoms of Hong Kong residents must be consistent with the provisions of the ICCPR.¹⁷

Modern surveillance technology

33. To understand the scope and nature of the problem posed by intrusions on privacy, it is necessary to have some knowledge of the surveillance technology which is now available.

34. The development of new surveillance technology has had a significant impact on the ability of the individual to protect his privacy. Cameras are now capable of taking photographs in the dark; conversations inside a room can be recorded by applying laser beams to the window from the outside; and information stored in a computer can be read off a video display unit by the implantation of a listening device, a remotely operated camera, or the re-creation of the data from electromagnetic radiation emitted by the computer.¹⁸

Counter-surveillance

35. The development of surveillance technology has also generated a small industry devoted to counter-surveillance. The techniques used may include:¹⁹

• Technical sweeps to detect such indicators as electronic pulses, surges, and radio frequencies. For example, a device is available to detect tape recorders, by detecting the erase oscillator on the head that erases the tape when it is recording. The oscillator signal radiates an electronic bias for several feet.

• Physical examinations.

• Active countermeasures, such as deploying jamming equipment. For example, an ultrasonic device will generate a high frequency tone above the range of normal hearing. Any attempt to record a conversation within the vicinity of the device will result only in an indecipherable high pitched sound. Another measure is the use of scramblers to render into code telephone conversations.

Use of surveillance devices in Hong Kong

36. In Hong Kong, the control and licensing of surveillance equipment is governed by the Telecommunication Ordinance (Cap. 106). Enforcement is the responsibility, not of the police, but of the Office of the Telecommunications Authority (“OFTA”). OFTA reported that there were 53 convictions for unauthorised dealing in radio equipment and 302 convictions for illegal use of amateur transceivers in 1995-96. According to a recent newspaper report²⁰, there is every indication that surveillance is widespread in the territory. An estimated 50 shops in Tsim Sha Tsui and Central alone sell surveillance equipment, such as a “pocket calculator” costing $8,900 which can transmit a conversation a kilometre away.

The social dimension of surveillance

37. Lustgarten and Leigh refer to the social concerns raised by the increase in electronic surveillance:

“One of the defining characteristics of a free person is the ability to control information about oneself. This may be important at an instrumental level: if I cannot conceal my peculiar sexual tastes, I may become unpopular, find doors to employment closed to me, or suffer some other disadvantage. More fundamental, however, is the sense of mental and emotional security that this control entails. ... If I have no control over what is known about me, I am seriously diminished as a person both in my own eyes and in those which are capable of intruding upon me. This dual aspect of respect and self-respect is a vital dimension to privacy. ...

Clandestine interception or eavesdropping infringes upon a fundamental choice: with whom one chooses to speak. The only defences against it are silence and withdrawal. ... Turning inward is not merely bad for the individual personality, it is destructive of a great collective value: sociability. An atmosphere in which people practice self-censorship, avoid sharing thoughts and feelings, and prefer secretiveness for reasons of safety is stultifying and fearful.”²¹

38. The undesirability of an increasing incidence of surveillance in society had been noted by the Younger Committee as long ago as 1972. The Committee observed that “in such cases, we were told, the result would be an increase in the incidence of tension-induced mental illness or at least a decrease in the imaginativeness and creativity of the society as a whole.”²²

Privacy technologies

39. While the purpose of many of the new technologies is to intrude on the individual’s privacy, other technologies have been specifically developed to protect privacy. Some of these technologies are designed to conceal the identity of the data source. Anonymity is often the best means of securing privacy. Others, such as cryptography, scramble communication to prevent interception. However, some governments are endeavouring to restrict the individual’s use of technologies designed to protect privacy. Nonetheless the development of such technologies is likely to continue and increase in importance.²³

The relationship between surveillance techniques

40. Gary Marx classifies different types of police work according to whether they are overt/ covert or deceptive/non-deceptive.²⁴ He characterises most police work as overt and non-deceptive, such as the open investigation of reported crime. An example of overt and deceptive police work would be a uniformed officer misleading a suspect into believing that an accomplice had confessed. Covert and non-deceptive techniques characterise surveillance activities generally, such as hidden recording devices. But undercover work is both covert and deceptive. Unlike unobtrusive surveillance, undercover activities “directly intervene to shape the suspect’s environment, perceptions, or behaviour”. This is achieved by the use of agents posing in other roles, such as colleagues or fellow criminals. Undercover activities resemble covert or deceptive tactics in that they provide a means of discovering otherwise unavailable information.

41. Marx argues that if controls are placed on one class of surveillance practices there will be a greater likelihood that other, unregulated, practices will be adopted. For example, regulating telephone tapping but not the bugging of premises may be expected to increase the incidence of the latter, more intrusive, activity:

“Once one form is subject to legal regulation, failure to control other forms not only becomes morally indefensible, but also in practice undermines the protection granted. This arises from the simple behavioural prediction that, assuming equal effectiveness, measures that can be undertaken free of oversight will be much more attractive to people doing the work than those which are subject to review.”²⁵

42. Cost is also a factor governing the relative incidence of different categories of surveillance techniques. Telecommunications interception is a favoured method of surveillance because it is comparatively cheap.²⁶ All surveillance techniques have as their object the obtaining of information that is not forthcoming through overt methods. The method chosen will depend on legal, logistical and financial considerations.

An integrated approach to regulating intrusion

43. These factors indicate that an integrated approach should be adopted to the regulation of intrusions upon privacy. Protection against undue interference with privacy is effective only if interception of communications as well as some other forms of surveillance are regulated. We consider that the United Kingdom approach, which regulates only interception of telecommunications and mail, is therefore unsatisfactory.

44. As covert methods vary in their degree of intrusiveness, an integrated approach could stipulate that a more intrusive method be resorted to only when a less intrusive one is not practicable. For example, techniques which involve physical intrusion into premises (such as planting a recording device) may be more intrusive than electronic surveillance conducted by remote means. This approach would have the added advantage of avoiding problems of definition which arise if an attempt is made to regulate only some surveillance activities.

The privacy debate in Hong Kong

45. A number of reports have been released in the last five years focusing on telephone interceptions in Hong Kong. In 1991, Justice released a report seeking the introduction of legislation requiring telephone interceptions to be justified to an independent body. In March 1991, the Bar Association prepared a submission to the United Nations Human Rights Committee on the Third Periodic Report on Hong Kong. The submission addressed the issue of telephone tapping and argued that there is “no clear legal authority for this practice”. They added that there was a:

“complete lack of information on who could authorize telephone tapping, under what circumstances it could be authorized, and what safeguards are there to prevent abuse or unjustifiable invasions of privacy.”²⁷

46. On 5 April 1991, the South China Morning Post reported that the Human Rights Committee had questioned government representatives on the issue and called for additional legal protections.

47. On 26 May 1992, the same paper reported that the Convenor of the Omelco Constitutional Development Panel, the Hon Andrew Wong, had said that the reference in section 33 of the Telecommunication Ordinance (Cap. 106) to tapping in the “public interest” required to be more clearly defined. More recently, the Review Committee of the Independent Commission Against Corruption recommended a review of existing powers to intercept communications.

48. A further recent development was a proposal to introduce a private member’s bill to impose a court warrant system to regulate the interception of telecommunications and mail.²⁸

Local attitudes

49. The differences in attitude to privacy between countries, and even between different sections of the same community, is acknowledged by commentators. A survey conducted by Drs John Bacon-Shone and Harold Traver in Hong Kong in 1993 included a number of questions addressing surveillance.²⁹ The questions and responses are set out below:

In response to each question, over 50% thought that legal regulation was called for. A similar survey carried out in 1996 did not show any material change to the results.

A broad approach to protection from intrusion

50. We have concluded that our initial task should be to define clearly the scope of the individual’s right of protection against intrusion. Only once that is done can the scope of legal controls be examined. The purpose of surveillance is the capture of information relating to the individual, but the intrusive nature of the process means that surveillance is objectionable whether or not any information is obtained as a result.

51. The individual’s reasonable expectation of protection from intrusion should not be adversely affected by “bad” practices in society. Intrusions may be commonplace in Hong Kong but this should not preclude an individual from expecting minimum standards set out in the International Covenant buttressed by the provisions of the Basic Law. The decisions of the European Court of Human Rights in Klass³⁰ and Malone³¹ indicate that the relevant standard is what an individual should be entitled to expect in a society governed by the rule of law. This reasonable expectation should be judged objectively according to the standards of a society subject to the rule of law. In the Hong Kong context, this means that the individual should have a right to expect that the protection afforded to his privacy be measured up to the minimum standards enshrined in the ICCPR and the Basic Law. To proceed in any other way would mean that the rights of the individual under the ICCPR could be ignored or diminished by their negation in practice. This would be incompatible with the notion of the rule of law.

52. Distinctions are often drawn between aural and visual surveillance. In principle, we consider such distinctions to be irrelevant. It should not matter what perceptual sense is employed by the intruder. Whilst telephone calls may be overheard, letters may be read and significantly communicative non-verbal behaviour monitored. Similarly irrelevant, in our opinion, is whether the data collected is immediately meaningful to the recipient; infrared signals signify the presence of a human being as much as photographic images.

53. A person’s reasonable expectation of privacy can be broadly categorised as follows:

1. that he will not be deliberately observed or overheard; or

2. that he will not have his communications deliberately intercepted, read, or recorded; or

3. that he will not have his personal, professional or business articles, data and papers deliberately examined, copied or recorded,

when in all the circumstances he has a reasonable expectation that the intrusion in question will not occur.

54. This classification distinguishes between the capture of data that directly emanates from the individual (such as appearance, sound, temperature and odour), which is addressed by (a), and data that is instead consciously generated by the individual (such as on his word processor), which is addressed by (c). While the latter category of data is already partly addressed by the Personal Data (Privacy) Ordinance and the anti-hacking provisions of the Telecommunication Ordinance, the former is at present totally unregulated.

55. Insofar as the individual has a reasonable expectation of privacy in the use of certain communications, he is entitled to have, in accordance with the ICCPR, an expectation that the privacy of such communications will be governed by the rule of law and that the law will protect such communications from any arbitrary or unlawful interference.

General approach to criminal sanctions

56. Having briefly considered the individual’s right to, and expectation of, privacy, we now address the difficult issue of what conduct which infringes this expectation should be subject to criminal sanctions. This is distinct from the issue of whether a civil remedy should be available.

57. In framing recommendations on criminal sanctions we have been guided by the following principles:

a) Social need: In determining the scope of criminal sanctions, we should not criminalise conduct unless it is essential to do so. Social need is a crucial consideration and a law that does not reflect society’s views will be ignored. The adequacy or otherwise of the present law is relevant to whether criminal sanctions are required. A danger of broadly drawn criminal offences is that they could lead to abuse.

b) Establishing norms: The imposition of criminal sanctions usefully establishes social norms to proscribe clearly unacceptable conduct.

c) Deterrence and retribution: Establishing a criminal offence also acts as a deterrent. This would be so even if no prosecution were ever brought.

d) Systematic investigations: Attaching criminal sanctions to unacceptable conduct provides the individual with police assistance in investigating and remedying wrongdoing.

58. Having carefully considered the issues, we agree that criminal sanctions are necessary to regulate intrusion upon privacy. As far as the interception of communications is concerned, the detailed arguments supporting this conclusion are provided in chapter 4 below.

Consultation paper

59. On 16 April 1996, the Privacy sub-committee issued a consultation paper on Privacy: Regulating Surveillance and the Interception of Communications. The consultation period lasted for two months and ended on 15 June 1996. The sub-committee received over 30 submissions. We are grateful to all those who commented on the consultation paper. A list of those who responded is at the Annexure.

60. After briefly considering all the submissions from the respondents, the sub-committee decided that priority should be given to finalising the recommendations on the interception of communications and that their report to the Commission should be split into two parts, the first dealing with interception of communications and the second with surveillance involving intrusion into private premises.

61. It is clear from the submissions that it is the procedure under section 33 of the Telecommunication Ordinance (Cap. 106) that has aroused most public concern and pressure for change. In fact, it is fair to say that most, if not all, respondents agree that there should be provisions regulating the interception of communications. There is little controversy over the proposal that the existing procedure should be replaced by a warrant system under the scrutiny of a judge. In order to enable the Administration to respond swiftly to such demands, we agreed to defer our deliberations on the regulation of surveillance and to focus first on issues concerning interception of communications. This report therefore deals mainly with interception of communications.³² The sub-committee will resume the discussion relating to intrusion into private premises shortly after we have finished our deliberations on this report.

Sub-committee meetings

62. The Privacy sub-committee started discussing the second part of the privacy reference on 11 February 1995. A total of 26 meetings were held to arrive at the conclusions and recommendations in the consultation paper. Another 21 meetings were held to discuss the comments received from those responding to the consultation paper.

Responses to the consultation paper

63. The overwhelming majority of those who responded to the consultation paper, including the law enforcement agencies, supported the proposal that interception of communications should be regulated by law. A few expressed the concern that our recommendations would affect the private sector as well as the public authorities. There were also suggestions that the media should be exempted from regulation and that a public interest defence should be available to the person charged with the proposed interception offence. All these concerns are addressed in this report.

64. We have taken into consideration all the comments received by the sub-committee. Our approach is to concentrate on the basic principles which would help shape a regulatory framework which is both feasible and broadly acceptable to the public. The technical details of the proposals would be a matter for the Administration and the law draftsman at a later stage.

Chapter 1

Interception of communications:

technical aspects

Summary

1.1 The privacy of communications is already subject to legal controls, not all of which are consistent. These are examined in the following two chapters. Before examining these controls, the ways in which interceptions are effected in modern telecommunications systems is summarised. These are as varied as the telecommunications systems now employed. Since 1993, Hong Kong has had a fully computerised digital communications infrastructure. This replaced an analogue system which was susceptible to wiretaps. However, in a digital system interceptions can be effected remotely by manipulation of the computer switching software. Hacking into this software via on-line PC’s has been reported in other jurisdictions. Mobile communication systems, which are based on radio signal transmissions, are vulnerable to interception via computer based scanners.

1.2 Modern computer techniques facilitate the interception of only those communications of particular interest. Programs to assist the interceptor in targeting intercepts include those that recognise particular voices, key words or phrases, or specific telephone numbers.

Introduction

1.3 Modern telecommunications systems are either analogue or, more recently, digital. The technical position is summarised by Fitzgerald and Leopold as follows:

“In a conventional telephone network, the sound of the human voice is converted into an electrical current, which takes a form analogous to the speech pattern; as the sound of the voice on the telephone changes, so does the shape of the electrical signal on the line. ... In a digital transmission system, on the other hand, sound is converted into a series of bits [binary digits] ... . In a digital system, data is encoded as strings of ‘0’s and ‘1’s, which, in a computer, are represented by the presence or absence of electrical pulses ... each string of digits corresponding to a particular voice sound level.”³³

1.4 It is not only the human voice which can be encoded into bits and transmitted in digital form; so too can computer data:

“Computer data may be transmitted, just like telephone signals, down cables or over high frequency microwave radio systems. Over long distances, it is usually sent along normal telephone lines, after being changed, by a device known as a ‘Modem’ (MOdulator/DEModulator), out of its digital, on-off, form into a wave-like signal which can be carried by the analogue telephone network we currently enjoy [i.e. in the UK in the late 1980s - all of the Hong Kong system is digitalised].”³⁴

1.5 Just as computers have become increasingly efficient, so have modems, with affordable models small enough to carry with a notebook, and capable of being run off a battery pack. Computer data already comprise half the traffic on a telephone network and the proportion is increasing: data income is growing six times as fast as voice income.³⁵ Fitzgerald and Leopold continue:

“Intercepting computer data can be done in one of two ways. If it passes through the phone system, or even a direct wire, it can be picked up by any of the normal amateur phone tapping methods, although naturally the snooper needs a suitable terminal, rather than a telephone handset, to make the signal intelligible. ...

More common than computer tapping is hacking. A computer which can be dialled up on the telephone to allow its legitimate users to communicate with it from a distance may also be accessed by anyone with a computer and modem who wants to find out what is in the memory. The hacker needs to understand how to control the computer they have accessed, and most large organisations try to keep their data secret by restricting access to those who have an authorised user identity code and one or more passwords. Only when these are fed into the central processing unit (CPU) will the computer allow access to its memory.”³⁶

1.6 As explained above, “hacking” is a pejorative term used to denote unauthorised access to a computer. For the purposes of the present discussion, lack of authority is not the point. What is fundamental is that the distinction between computers and telephones has become blurred. The switching systems of modern digitalised telephone systems are controlled by computers and interception is effected by manipulation of the software on which those computers completely depend. Each telephone number is represented by a long code, the LEN (Line Equipment Number), which assigns functions and services such as “call forwarding” to the phone. Switching manipulation of the codes may re-route calls, re-assign numbers or effect other alterations. It would allow the eavesdropper to listen in on the switch routed call. Because computers can talk to each other through the use of modems, manipulation of switching software may be effected on the computer in question or through another computer anywhere in the world. It might be for law enforcement purposes, or it might be hacking for fun. Again, it may be for profit. For example, a credit card thief may re-route verification calls from the credit card company to a number to which the thief has access. As Clough and Mungo put it, a telephone network is “really just a giant computer linking terminals - or telephones - with switches and wires and loops all across the country”.³⁷ We could add that he could now have said “across the world”.

1.7 Furthermore, as Fitzgerald and Leopold point out, digitalisation makes telephone tapping less detectable:

“In its essence, all conventional tapping consists simply of attaching an extension telephone to the target’s line. Whether this is done at the exchange by professionals or by the methods described in Chapter 8, there is always a physical tap somewhere on the target’s line which can be seen, if not by the tapped person then by [British Telecom] engineers. ... Digital tapping is different. The tap leaves no physical presence anywhere; it is literally invisible, and makes no discernable changes to the telephone circuit being tapped. ”³⁸

1.8 In the days of analogue telecommunications, non-intrusive monitoring at the subscriber’s copper loop was easy; a simple device could intercept all required information. In contrast, retrieving the bit stream from the same pair of copper wires carrying digital information requires high technology equipment that can handle the many different local switching systems now in use. A similar increase in complexity applies to the wireless environment. Increased use of air waves and new transmission and coding schemes all demand high technology solutions.

Mobile phones: interception of radio signals

1.9 Tapping and manipulation of computer software are two of the main methods of effecting the interception of telecommunications. A third method is by means of the interception of radio channels. These may be terrestrial or, for international communications, by means of satellite. Those who still use analogue portable phones are particularly vulnerable. As an article in the International Herald Tribune put it, calls can be intercepted by anybody with a radio frequency scanning device “as easily as a motorist tunes into a station on a car radio”. This is particularly so if the call is made on the street:

“Cellular telephones are radio transmitters that broadcast to and receive signals from a network of ‘cells’ or transmission towers. When a cellular user drives or walks, different cell sites capture and strengthen the cellular telephone’s radio signal and then connect the phone to the regular telephone network. ”³⁹

1.10 The article goes on to point out such radio frequencies have difficulty penetrating thick walled buildings. But interceptions may still be effected by devices registering the vibrations off windows.

1.11 Cellular phones using analogue signals are easy to listen to because they broadcast the sound of the human voice. Conversations on such phones can be encrypted, but only with an elaborate and expensive model of phone. Digital models, on the other hand, code the voice in numbers, making them readily encrypted and, until recently, less susceptible to eavesdropping. Analogue systems have been scanned via computer based radio scanners locked onto a particular cell site (a micro broadcasting/receiving radio station atop a building, etc). The hacker scans the analogue transmission from cell site to cell site. With digital (e.g. GSM) systems scanning is inherently more difficult. The digital signal encryption is based on an algorithm and a high speed array processor computer is required to crack the code. However, it is not clear whether personal communications service will be encrypted.

1.12 There is a recognition that the Telecommunication Ordinance (Cap. 106) does not adequately address the interception of mobile phone calls. As one official explained:

“When we drafted that ordinance in 1963 we were looking at a telecommunications industry that was basically restricted to a wire telecommunications network”.⁴⁰

International interceptions

1.13 International telecommunications transmissions are made by means of satellite or cable. Fitzgerald and Leopold explain the technical aspects:

“The telecommunications satellite acts as a relay station, amplifying and retransmitting the signals which it receives, so that all earth stations within sight of it can exchange transmissions with each other. ... Shadow earth stations are adequate for intercepting one-way telex or data transmissions, through which much international trade is conducted, but there comes a problem in dealing with telephone or duplex (simultaneous, both-way) data traffic. The two parts of the conversation must be intercepted on different channels or, in some cases, even at different monitoring stations. Moreover, a large proportion of international communications travels via cable ... . Cables are inherently more resistant to tapping than radio links ... . Despite the difficulties, it is possible to tap underground and submarine cables [by means of devices that] detect the magnetic field around the target line, caused by the current flowing through it, which can be analysed to reveal the traffic on that line.”⁴¹

Analysis of transmissions

1.14 Fitzgerald and Leopold point out that:

“The values of tapping has always been depressed by the need to sort through the intercepts to distill useful intelligence from a mass of trivia. This is a tedious, painstaking process better suited to computers than to human analysts. ”⁴²

1.15 They describe the following computer strategies aimed at sifting out material of possible interest:

• Filtering out spurious traffic on the basis of call destinations.

• Keyword recognition: programs register the occurrence of a particular word in a conversation, regardless of who says it.

• Voice recognition:

“This is likely to be more productive than key word recognition: targets of tapping are frequently circumspect in what they say on the phone, but the presence of a particular speaker cannot be disguised - false accents will not fool the system.”⁴³

“Such a system could, for example, be used to trawl out all international calls made from any telephone by a particular political activist. ”⁴⁴

1.16 Fitzgerald and Leopold caution, however, against the assumption that it is only mavericks who may be tapped:

“Even people who may themselves be above suspicion of being subversive or engaged in serious crime may be tapped, because of what they know, or because of what they may have been told. The fact that the Left are the most vocal on the subject of tapping should not convince others that they themselves are not tapped. In many ways, the VIP denizens of Westminster and the City of London are far more likely to be of interest to the intelligence world than is the average would-be agitator.”⁴⁵

Message systems of telecommunications systems

1.17 A comprehensive account of interception of telecommunications requires mention of the interceptability of modern message systems.

Facsimile

1.18 Faxes are vulnerable to interceptions, particularly the telephone lines that service machines: “The wires going into faxes are exposed at least once or twice on each floor of a building, it’s terribly easy to wiretap” according to former IBM computer security chief Mr Robert Courtney.⁴⁶