Provision of real-time interception assistance

Criminal Procedure Act 1981 ((LOV-1981-05-22-25) Lov om rettergang i straffesaker) (the “CPA“)

According to section 216a CPA (which falls under chapter 16a on control of communications generally), the district court may make an order permitting the police to carry out communications surveillance when any person is, with just cause, suspected of attempting or committing an offence that:

  • is punishable by imprisonment of 10 years or more; or
  • contravenes certain provisions of the General Civil Penal Code 1902 (the “Penal Code“) including offences relating to national safety, political espionage, acts of war, and certain drug related crimes, or section 5 of the Export Control of Strategic Goods, Services and Technology Act 1987 (the “ECA“), which is a law dealing with export control and related offences.

“Communications surveillance” may consist of audio surveillance of conversations or other communications conducted to or from specific telephones, computers or other apparatus for electronic communication which the suspect possesses or which it may be assumed he will use.

The police may be empowered to conduct an interception itself, or to order the owner or supplier of a network or service to provide such assistance as is necessary for carrying out the interception. The obligation to assist may apply either to the operator who owns the network used for the communication in question, or to the service provider that provides the communications service in question.  The CPA does not identify the specific obligations of network operators or service providers, and the police have wide discretion to determine when assistance is “necessary”.

In addition, under section 222d CPA, the district court may make an order permitting the police to carry out communication surveillance pursuant to section 216a when there is just cause to suspect that someone will perform an act contrary to certain provisions of the Penal Code, which include offences relating to public safety, murder, robbery or organised crime.

Separately, section 222d CPA also provides that, where the Norwegian Police Security Service (the “PST“) has reasonable grounds to believe that a person will commit an act that contravenes section 5 ECA, or certain serious crimes including threats to national security and terrorist financing as set out in the Penal Code, the measures set out in section 216a CPA may be invoked.

The PST is the police security agency of Norway and is responsible for monitoring and securing internal security. Publicly known operational departments include the counter-intelligence unit, investigation unit, surveillance unit and the technology unit.

Court orders issued to the PST may only be given by a judge with the relevant security clearance and the court order may only be issued by the district court chosen by the head of the Norwegian Supreme Court.

According to section 448 CPA, damages may be awarded to network operators and service providers for any loss caused as a result of requests for assistance by the police, when this is found to be reasonable by the court.

According to section 216d CPA, if there is a serious risk that an investigation will be prejudiced by delay, an interim order from the Norwegian Prosecuting Authority (the “NPA“) may take the place of a court order.  The NPA, which is part of the Norwegian Council of State (a decision-making body of senior government ministers), is responsible for legal prosecutions in Norway.

When the police issue a decision or request a court order, the decision must be made by the chief of police or deputy chief of police or, in their absence, certain other officials of the prosecuting authority as decided by the chief of police or the authorised deputy with written consent of the senior public prosecutor.

The interim order by the NPA must be submitted to the court for approval as soon as possible, and not later than 24 hours after the interception has begun. If the court considers that illegal interception has taken place, then any evidence that has been uncovered will be treated in accordance with the rules on illegally acquired evidence.

According to section 216f CPA, permission for all types of control may not be given for more than four weeks at a time, and must not be longer than strictly necessary.  If suspicion of an offence relates to a contravention of chapter 8 or 9 of the Penal Code (offences against the independence and security of the state and offences against the Constitution of Norway and the head of state) such permission may be given for up to eight weeks at a time. However, if an extension is required, the police must obtain a new court order (or a decision must be made by the PST or the NPA as per section 216d CPA).

Police Act 1995 (Lov om politiet (LOV-1995-08-04-53)) (the “PA“)

According to section 17d PA, the district court may make an order permitting the Police Security Service (the “PST“) to carry out communication surveillance as set out in section 216a CPA, if there is reason to suspect that an offence under certain sections of the Penal Code will be committed.  Such offences include terror offences, threatening national security or an offence against someone in the Royal Family, members of Parliament, the government, the High Court or representatives from similar institutions from other countries.

An order from the chief of the PST or his deputy may take the place of a court order if there is a serious risk of an offence against the Royal Family, members of parliament, the government, the High Court or representatives from similar institutions from other countries and preventative action would be impaired by delay.

Disclosure of Communications Data

Criminal Procedure Act 1981 ((LOV-1981-05-22-25) Lov om rettergang i straffesaker) (the “CPA“)

According to section 216b CPA, the court may issue an order permitting the police to carry out other forms of control of communications, which may include requesting metadata for example, when a person is, with just cause, suspected of committing certain offences under the Penal Code that may result in imprisonment of five years or more.  Such offences include acts that are a threat to national security, political espionage, terrorism, illegal access to data or programs or certain drug related crimes.

Control of communication includes:

  • discontinuation or interruption of the transmission of conversations or other communications conducted to or from specific telephones, computers or other communication devices which the suspect possesses or it may be assumed he will use;
  • requiring the owner or provider of the network or service which is being used for the communication to inform the police of which communication devices will, during a specific period of time, be linked or has been linked to the device specified in the first bullet point, and of any other data connected with the communication.

Under section 216c CPA, permission to carry out control of communications may only be given if it will be of substantial significance to clarify the case and the use of other methods of investigation would be substantially more difficult.

The investigation control measure employed may consist of the police requiring that the owner or provider of the network service informs the police of traffic data and “other data”. According to the preparatory works (Ot.prp.nr 64 (1998-99) section 23) of the section, “other data” may be but is not limited to:

  • information about the duration of a call;
  • the geographical placement of a cell phone upon the time of the communication; or
  • who was logged on to a computer at the time that the computer was used for communication purposes.

The police and the PST may also, following a court order, carry out control of communications in accordance with section 222d CPA, as described in section 1.1 of this report.

When the obtaining of a court order is likely to lead to a serious risk of delay, the police and the PST may apply for an interim order to be issued by the Prosecuting Authority, using the same procedure as is outlined in section 1.1 of this report in relation to interceptions.

Electronic Communications Act (Act No. 83 of 04 July 2003) (the “ECA“)

Section 2-7 ECA regulates how long and for what purposes network operators or service providers may retain metadata.

Traffic data must be deleted or rendered anonymous as soon as it is no longer necessary for communications or invoicing purposes, unless otherwise determined by or pursuant to law. Any other processing of traffic data requires the consent of the user.

Police Act 1995 ((LOV-1995-08-04-53) Lov om politiet) (the “PA“)

According to section 17d PA, the district court may issue an order permitting the Norwegian Police Security Service (the “PST“) to mandate the disclosure of communications metadata as set out in section 216b CPA, if there is reason to suspect that an offence under certain sections of the Penal Code will be committed.  Such offences include terror offences, threatening national security or an offence against someone in the Royal Family, members of Parliament, the government, the High Court or representatives from similar institutions from other countries.

National Security and Emergency Powers

In addition to the legislation set out above which makes reference to police powers in national security situations, specifically sections 216a, 216b and 222d of the    Criminal Procedure Act 1981 and section 17 d of the Police Act, the provisions set out below may provide government agencies with further powers in relation to national security and emergencies.

General Civil Penal Code 1902 (the “Penal Code“)

According to section 47 of the Penal Code, no person will be punished for committing an act which would otherwise be an offence if they do so to save someone’s person or property from what they believe to be an otherwise unavoidable danger.  The circumstances must justify the extent of the act.  The police have in some cases used this provision as the legal ground to, for example, jam signals, in instances not covered by the other powers outlined in this report.

In addition, under section 48 of the Penal Code, no person may be punished for an act committed in self-defence.  As a result, an otherwise criminal act may be committed in defence against an unlawful attack if the act does not exceed what appeared to be necessary for that purpose.  The act in self-defence must be proportionate to the dangerousness of the attack, the guilt of the assailant or the legal right that is threatened by the attack.

Provided that the conditions in section 48 are fulfilled the provision may, for example, be used to block other frequencies than those that are part of a public communication network, as provided by section 6-2a ECA and section 216b CPA, for example, to trigger explosives.

Electronic Communications Act (Act No. 83 of 04 July 2003) (the “ECA“)

According to the section 6-2a ECA, the police may use frequencies allocated to others through the use of “mobile regulated zones”, subject to certain limitations.

Section 1-5, number 19 ECA defines a “mobile regulated zone” as a limited geographical area where communication in an electronic public communication network for public use is influenced or impaired by use of legal identification catching or jamming. Number 20 of the same section describes “identification catching” as the manipulation of networks used for public mobile communication for the purpose of uncovering the electronic identity of terminal equipment using the network.

The National Security Authority (the “NSA“) may also, in exceptional cases and for a short period of time, use frequencies allocated to others without permission from the Norwegian Communication Authority (the “NCA“) when this is a necessary measure for proper securing of conference rooms, cf. Section 16 of the Norwegian Security Act.

Both the police and the NSA must also notify the NCA without undue delay after the measure has been established if frequencies allocated to others are used.

The NCA decides, in consultation with the police or the NSA, if a network operator or service provider should be informed.   If it is decided that a network operator or service provider should not be notified, this decision must be recorded and explained in writing.  According to the preparatory works of the ECA (Prop.69 L (2012-2013)) Endringer i ekomloven), the NSA and the police must balance the police’s need for secrecy against the consequences for the network operator or service provider.

As a result of the use of mobile regulated zones, network operators or service providers may appear to experience irregularities in their systems. In order to avoid costly and unnecessary corrective actions, the police or the NSA will decide, on a case by case basis, whether the network operator or service provider should be informed that the irregularities may be due to the use of a mobile regulated zone. The decision is not subject to disclosure or appeal.

Ministry of Transport and Communication, public consultation regarding proposed changes to the Police Act and the Electronic Communications Act (Høring – forslag til endringer i politiloven og ekomloven – mobilregulerte soner mv.) (the “Consultation“)

The Consultation proposes to amend section 6-1 ECA and section 7b PA. These amendments will give the police permission to establish mobile regulated zones in a greater number of scenarios than the law currently provides for, for example, to prevent serious disruptions of public peace and order or to prevent criminal actions with prison sentences of more than three years.

In addition, mobile regulated zones may be used to identify and block signals in networks other than just the public communication network, for instance, to block explosives that may be triggered by alarm systems or garage openers.

Network operators or service providers need not be notified if this is necessary to implement measures under the new section 7b. The decision not to notify network operators or service providers depends on a cooperative decision made by the police and the NCA, with the final word belonging to the police.

Furthermore, in certain situations the police will not be obliged to notify the NCA. This will only be applicable in a few special situations where there is a serious reason that makes it necessary to keep the police operation secret. If the new rules are implemented, the police will not have to obtain a court order to establish the mobile regulated zone. The decision may be made by the chief of police or the deputy chief of police.

The deadline for responding to the public consultation was 23 January 2015.  At the time of writing this report, no further developments had taken place.

Censorship Related Powers

Constitution of the Kingdom of Norway (the “Constitution“)

Censorship is prohibited under Article 100 of the Constitution.  Certain laws do, however, provide government agencies with powers to block communications in specific circumstances, as set out below.

Criminal Procedure Act 1981 (Lov om rettergang i straffesaker (LOV-1981-05-22-25) (the “CPA“))

As set out in section 2.1 of this report, according to section 216b CPA, the district court may make an order permitting the police to carry out other forms of controls of communications when a person is, with just cause, suspected of committing certain criminal acts. The control may be exercised by discontinuing or interrupting the transmission of conversations or other communication conducted to or from specific telephones, computers or other communication devices that a suspect possesses or which it may be assumed that he will use.

The communication device must be identified, for instance by a telephone number or IP-address, in the court order.  If communications to and from a specific IP addresses are to be blocked, the IP address, must be specific to that computer.  If, for example, the computer is given a new IP address each time it connects to the Internet, the IP address is not suitable to identify that computer and the network operator or service provider cannot be ordered to block access to that IP address.

The police must be able to demonstrate a possibility that the device will be used based on objective criteria.

Oversight of the use of these powers

 

The Communications Control Committee (Kontrollutvalget for kommunikasjonskontroll) (the “Committee“)

In relation to the various police powers mentioned above, the Committee must verify that the police’s use of their control of communication powers occurs within the confines of the law and that the use of these powers is minimised as much as possible, for example, by ensuring they are only used when necessary for an investigation.

The legal basis for the Committee’s authority comes from chapter 2 of the Statute Regarding Communication Control 2000 (the “Communication Statute“) and section 216h of the Criminal Procedure Act 1981 (the “CPA“).

The Committee evaluates reports from the chief of police to the Office of the Public Prosecutor.  It also evaluates any complaints from persons or organisations that claim to have been subject to illegal forms of control of communication. The Committee may also, at its own initiative, look into any case or matter in relation to the police’s and the prosecuting authority’s use of control of communication. The Committee does not evaluate on-going cases at the request of the prosecuting authority.

According to section 12 of the Communication Statute, the Committee must consist of three members and one or more deputies and the leader of the Committee must fulfil the requirements of a High Court judge.

Under section 17 of the Communication Statute, if the Committee finds reason to criticize the police or the NPA, the matter must be reported to the Attorney General and the Ministry of Justice.

The Norwegian Parliamentary Intelligence Oversight Committee (EOS-komiteen) (the “EOS Committee“)

The EOS Committee is responsible for external and independent control of the Norwegian secret services (including the Police Security Service) (the “EOS Services“). The EOS Committee’s primary task is to make sure that the EOS services keep their activities within the legislative framework applicable to them and must further ensure that no individual is subjected to unjust treatment.  They must also ensure that the EOS Services do not make use of more intrusive methods than necessary under the circumstances.

The EOS Committee has seven members, including the Chair and Deputy Chair. The activities of the EOS Committee are subject to the Act relating to the Oversight of Intelligence, Surveillance, and Security Services of 3 February 1995 no. 7 (the “Oversight Act“).  Provisions in the Oversight Act are supplemented by the Directive relating to the Oversight of Intelligence, Surveillance and Security Services of 30 May 1995 no. 4295, as determined by the Norwegian Parliament.

The EOS Committee submits a report on its activities to the Norwegian Parliament every year. Under Section 8 of the Oversight Act these reports cannot be classified. Prior to submitting the report to the Norwegian Parliament, the EOS Committee verifies that the requirements for releasing the document without classification have been met, by forwarding it to the EOS services involved. Statements in relation to complaints must also be unclassified. Information regarding whether any person has been subjected to surveillance activities will be classified, unless otherwise decided. Statements to administration will be classified according to their content.

Restrictions on network operators and service providers

The government does not have the legal authority to prevent a network operator or service provider from publishing aggregate data in relation to the volume of requests from the government it receives relating to the powers described in this report.

Aggregate data published by government agencies

As far as we are aware, the government does not publish aggregate data relating to its use of the powers described in this report.

 

Law stated as at 21 January 2015.

This information was originally published in the Legal Overview to the Telenor Group report on Authority Requests for Access to Electronic Communication in May of 2015.

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