Most countries around the world regulate the interception of communications by governments and private individuals and organizations. These controls typically take the form of constitutional provisions protecting the privacy of communications and laws and regulations that implement those requirements.

There has been great pressure on countries to adopt wiretapping laws to address new technologies. These laws are also in response to law enforcement and intelligence agencies pressure to increase surveillance capabilities. In Japan, wiretapping was only approved as a legal method of investigation in 1999. Other countries such as Australia, Belgium, Germany, New Zealand, South Africa and the United Kingdom have all updated their laws to facilitate surveillance of new technologies.

The United States government has been at the forefront of promoting greater use of electronic surveillance. Former FBI Director Louis Freeh traveled extensively around the world, promoting the use of wiretapping in newly democratic countries such as Hungary and the Czech Republic. At the same time, the United States has led world efforts to ensure that all communications technologies have built-in surveillance capabilities and to prohibit the manufacture and use of equipment that cannot be eavesdropped upon. The United States has also been working through international organizations such as the OECD, G-8 and the Council of Europe to promote surveillance.

Legal Protections and Human Rights

It is recognized worldwide that wiretapping and electronic surveillance are a highly intrusive form of investigation that should only be used in limited and unusual circumstances. Nearly all major international agreements on human rights protect the right of individuals from unwarranted invasive surveillance.

Nearly every country in the world has enacted laws on the interception of oral, telephone, fax and telex communications. In most democratic countries, intercepts are initiated by law enforcement or intelligence agencies only after it has been approved by an judge or some other kind of independent magistrate or high level official and generally only for serious crimes. Frequently, it must be shown that other types of investigation were attempted and were not successful There is some divergence on what constitutes a 'serious crime', and appropriate approval.

Several countries including France and the United Kingdom have created special commissions that review wiretap usage and monitor for abuses. These bodies have developed an expertise in the area that most judges who authorize surveillance do not have, while they also have the ability to conduct follow up investigations once a case is complete. In other countries, the privacy commissioner or data protection authority has some ability to conduct oversight of electronic surveillance.

An important oversight measure that many countries employ is the requiring of annual public reporting of information about the use of electronic surveillance by government departments. These reports typically provide summary details about the number of uses of electronic surveillance, the types of crimes that they are authorized for, their duration and other information. This is a common feature of wiretap laws in English-speaking countries and many others in Europe. Countries that issue annual reports on the use of surveillance include Australia, Canada, France, New Zealand, Sweden, the United Kingdom, and the United States. Meanwhile in the Netherlands, the Minister of Justice in April 2003 announced that he saw no additional value in maintaining a log of the frequency of wiretaps, or installing a special functionary to oversee the warranty process.^[1] It is not surprising that the Dutch have the highest rate of wiretaps in the European Union.^[2]

These countries recognize that it is necessary to allow for people outside governments to know about its uses to limit abuses. They are widely used in many countries by the Parliaments for oversight and also by journalists, NGOs and others to examine the activities of law enforcement. The reports have shown an increase in the use of surveillance in many countries including Australia,^[3] the United States, and the United Kingdom while others such as Canada have remained steady. Most recently, however, Canada has reduced the amount of reporting; despite statutory requirements, annual reports from the Solicitor General on surveillance activities have not been released since 1999.^[4]

These laws are designed to ensure that legitimate and normal activities in a democracy such as journalism, civic protests, trade union organizing or political opposition are free from being subjected to unwarranted surveillance because they have different interests and goals than those in power. It also ensures that relatively minor crimes, especially those that would not generally involve telecommunications for facilitation, are not used as a pretext to conduct intrusive surveillance for political or other reasons.

However, wiretapping abuses have been revealed in most countries, sometimes occurring on a vast scale involving thousands of illegal taps. The abuses invariably affect anyone "of interest" to a government. Targets include political opponents, student leaders and human rights workers.^[5] This can occur even in the most democratic of countries such as Denmark and Sweden, where it was recently disclosed that intelligence agencies were conducting surveillance of thousands of left-leaning activists for nearly forty years.

The United Nations Commissioner on Human Rights in 1988 made clear that human rights protections on the secrecy of communications broadly covers all forms of communications:

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.^[6]

The need for greater protection is recognized by many democratic countries around the world. Most recently, the German Federal Constitutional Court is considered whether the interception laws passed in 1998 are constitutional; the results of this case are expected in the fall of 2003.^[7]

Increasingly new standards, technologies and new policies are complicating the situation.

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