Wire-Tapping in the Regulatory State – Changing Times, Changing Mores

The traditional practice of intercepting posts and telegrams was extended to telephony, both wire-tapping and call-logging, at a time of little regard for privacy and with minimal transparency. It was the introduction of competition, particularly non-state operators, that required codification of obligations, in what had become regulatory states, characterised by the independent regulation of markets, with lobbying and litigation. Even then, little was explained to customers, despite privacy obligations from data protection legislation. The rising use of the Internet saw the addition of metadata collection by service providers, with the collection of geo-location data to customise services. These changes coincided with rising attention to human rights in governments, in the courts and in business (e.g., corporate social responsibility (CSR)). Indeed, some governments and firms now publish reports on the use of wiretapping and traffic data. Issues were complicated by globalisation, with increasing cross-border provision of services, with conflicting approaches to privacy, and the location of servers and service providers beyond the reach of courts and the (secret) police. A few governments acquired the capability to intercept or to hack into international communications. Matters were further complicated by the ready availability of encryption services (e.g., PGP and secure smartphones) and, to a lesser extent, interception technologies (e.g., Stingray). Some governments (e.g., China) have developed sophisticated censorship and interception capabilities, while co-opting service providers. Public understanding of wiretapping and the use of metadata are often based on novels and movies, which often overstate capabilities