Intercepting Data: The Impact for the Satellite Industry

Lawful interception obligations have again been brought into focus after the terrorist attacks occurring in Paris on 13 November 2015 in which 130 people lost their lives.

President François Hollande announced that France’s military resources and capabilities would be significantly reinforced in an address to the Congress of the French Parliament in November 2015. He identified intelligence, surveillance and reconnaissance as top priorities. In the French defense budget for 2016 the amount attributed to the military space sector, including space telecommunications and intelligence, is expected to reach 498.1 million euros ($561.98 million), compared with 152.2 million euros ($171.2 million) in 2015.

The United Kingdom is in the process of legislating a new framework of control over the interception of communications and other powers to access communications data. The Investigatory Powers Bill, which was introduced to Parliament on March 1, aims to give an increased level of transparency and accountability to the use of U.K. government surveillance powers, while introducing new and extended powers. The bill sets out the powers available to the police, security and intelligence services in the United Kingdom to gather and access communications and communications data.

In a perfect world, in relation to cross-border satellite services, the circumstances in which one country would allow interception on its territory would mirror the circumstances in which another country could require interception by an operator providing services in its territory. But this is rarely the case; giving rise to the possibility of satellite operators being caught in a collision between the requirements and prohibitions in different countries — even across Europe.

The nature of the subject matter, the issues of national sovereignty and strategic sensitivities lead to complex, opaque and uncertain regulatory frameworks, which often clash at an international level:

• certain countries may have different national interception requirements and requirements for what satellite operators may need to put in place; and

• if an interception required by one country may only be implemented by an act of interception in another country, the operator may face conflicting legal requirements and prohibitions.

There may be no legal basis in one country, for example where the satellite gateway is located and where any interception would need to take place, for a satellite operator to implement interception requests received directly from law enforcement agencies in other countries, unless going through the Mutual Legal Assistance Treaty (MLAT) procedure whereby requests are transmitted via the respective government channels in each country. It also may not be legal in that country to implement requests due to data privacy and communications secrecy obligations.

Direct requests to operators could be a more efficient alternative to current MLAT processes, which take on average around 10 months. However a framework enabling direct requests would have to overcome significant disparities in the standards and procedures applicable to warrants and similar requests in each country.

Manage Interception Requests

Although satellite operators may perceive that interception obligations can be flowed down to wholesale customers/distributors contractually, that sits alongside responsibilities under the external legal framework. To properly assess requirements and obligations of operators in the satellite domain, the value chain for the provision of satellite services needs to be understood. Interception requirements and the necessity to ensure an interception capability within a satellite system are closely linked to ownership and control of specific ground-based infrastructure. A satellite gateway located in a country may mean that interception requests need, at a technical level, to be implemented in that country regardless of the origin of the request. National regulators and other competent bodies may also impose regulatory requirements for an interception capability for operators licensed by them or providing services in their jurisdiction.

Satellite operators would be encouraged to engage with competent bodies in countries where there may be conflicting requirements in order to reach a resolution. VS