LCQ15: Interception of Communications and Surveillance Ordinance
*******************************************************

     Following is a question by the Hon Kenneth Leung and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (April 29):

Question:

     Article 30 of the Basic Law stipulates that 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. In this connection, will the Government inform this Council:

(1) of the existing legislation which respectively empowers law enforcement agencies to (i) intercept the short messages transmitted through mobile phone networks, (ii) intercept communication transmitted through the Internet, including e-mails and communication transmitted through instant messaging programs/platforms (e.g. Google Hangouts, WhatsApp, Telegram) and (iii) demand mobile phone/Internet service providers to provide the user communication information stored in their servers (including users' personal information, metadata and contents of communication); and

(2) whether law enforcement agencies, prior to carrying out the three types of operations mentioned in (1), are required to obtain authorisations from panel judges or authorising officers under the Interception of Communications and Surveillance Ordinance (Cap. 589); if they are not, of the mechanism and procedures for authorising law enforcement agencies to carry out such operations; if they are required to do so, in each of the past five years, the respective numbers of applications for judge's authorisations made by various law enforcement agencies to panel judges for each type of operations and, among them, the numbers of judge's authorisations granted (with a breakdown of the figures relating to operations of types (i) and (ii) by year and name of law enforcement agency, as well as a breakdown of the figures relating to operations of type (iii) by year, name of law enforcement agency and business nature of service provider)?

Reply:

President,

     The Member's question involves two different areas of work undertaken by law enforcement agencies (LEAs), namely covert operations conducted under the Interception of Communications and Surveillance Ordinance (Cap. 589) (ICSO) and routine work in combating crime. The Government's reply is as follows:

The Interception of Communications and Surveillance Ordinance
-------------------------------------------------------------

     Article 30 of the Basic Law stipulates that 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.

      The primary objective of the ICSO is to regulate LEAs' interception of communications and covert surveillance for prevention and detection of serious crimes and protection of public security. It provides a stringent regime to ensure that the LEAs' covert operations must be carried out in accordance with the requirements therein. Under the ICSO, no public officer shall, directly or indirectly (whether through any other person or otherwise), conduct any interception or covert surveillance, while LEAs are required to obtain authorisation from a panel judge or a designated authorising officer prior to any interception of communications or covert surveillance.

     Under section 8 of the ICSO, an officer of an LEA may apply to a panel judge for the issue of a judge's authorisation for any interception or Type 1 surveillance to be carried out by or on behalf of any of the officers of the LEA. As defined in section 2(1), "interception", in relation to any communication, means the carrying out of any intercepting act in respect of that communication; or when appearing in a context with no specific reference to any communication, means the carrying out of any intercepting act in respect of any communication; and "intercepting act", in relation to any communication, means the inspection of some or all of the contents of the communication, in the course of its transmission by a postal service or by a telecommunications system, by a person other than its sender or intended recipient.

     The Commissioner on Interception of Communications and Surveillance (the Commissioner) is the independent oversight authority established under the ICSO.  Pursuant to the ICSO, the Commissioner is required to submit an annual report to the Chief Executive every year. Section 49 of the ICSO also specifies the information and data to be set out in an annual report, including respective numbers and average duration of different types of authorisations, respective numbers of applications for renewal, major categories of offences involved, and reviews and overall assessments conducted by the Commissioner during the year.

     Figures of applications for new authorisation and renewal for interception submitted to panel judges by LEAs, as well as figures of authorisations issued and renewed by panel judges, as published in the annual reports of the past five years (from 2009 to 2013), are at Annex A.

     Given that operations carried out by LEAs under the ICSO are of a confidential nature, disclosing details of such detailed operational arrangements may reveal law enforcement capabilities of LEAs to criminals, who may be able to elude justice, thus undermining their strength in crime investigation and protection of public safety. Provision of further information is, therefore, inappropriate.

Law enforcement efforts in general
----------------------------------

     When investigating crime cases, LEAs may, having regard to the nature of the cases and for the purpose of crime prevention and detection, request necessary information related to crime detection from persons or organisations concerned, including subscribers' information (such as account name and Internet Protocol address (IP address)) and log records from local or overseas Internet service providers (ISPs), for locating witnesses, evidence or suspects. Such enquiries do not involve requests for records of the content of any non-open communications. Figures of requests for information made by LEAs to local and overseas ISPs in the past five years are at Annex B.

     If in suspicion of any person having committed an offence, LEAs shall apply for court warrants (search warrants) in accordance with relevant legal requirements for obtaining documents or information as evidence.

     As part of LEAs' routine law enforcement efforts, requesting users' information from ISPs and obtaining evidence by means of court warrants are beyond the regulatory scope of the ICSO.

Ends/Wednesday, April 29, 2015
Issued at HKT 15:23

NNNN