UPDATED: June 2015 | SOURCE: Telecommunications Industry Dialogue with support from Hogan Lovells
Provision of Real-time Lawful Interception Assistance
LAW OF THE REPUBLIC OF KAZAKHSTAN ON INVESTIGATION ACTIVITIES NO. 154-XIII DATED 15 SEPTEMBER 1994 (THE “LAW ON INVESTIGATION ACTIVITIES”)
Under article 12 of the Law on Investigation Activities and Article 232.2 of Criminal Procedural Code (discussed further below), real-time interception of private communications is only permitted for the purposes of detection, prevention and suppression of crimes for which the sentence is imprisonment for one year or more, and/or for crimes committed by a criminal group (i.e. organised crime).
Under articles 6 and 11 of the Law on Investigation Activities, the following entities may intercept private communications made over public telecommunications networks (together, the special investigation authorities, “SIAs”):
- the Ministry of Internal Affairs of the Republic of Kazakhstan and its territorial departments;
- the Committee of National Security of the Republic of Kazakhstan, its territorial departments, special forces, training institutions and research institutions;
- the foreign intelligence surveillance authority;
- the military intelligence department of the Ministry of Defence of Kazakhstan;
- the Anticorruption Service;
- the State Protection Service of the Republic of Kazakhstan; and
- the Economic Investigation Service (a division within the Ministry of Finance).
An SIA initiates an interception by submitting a request for permission to intercept private communications to the General Prosecutor, deputies of the General Prosecutor, the Chief Military Prosecutor, regional Prosecutors and other Prosecutors identified as having equivalent seniority to regional Prosecutors, for example Prosecutors of the cities of Astana or Almaty. The request must be accompanied by evidence in support of the SIA’s submission that the interception is required for the investigation in question.
CRIMINAL PROCEDURAL CODE OF THE REPUBLIC OF KAZAKHSTAN NO. 231-V DATED 4 JULY 2014 (THE “CRIMINAL PROCEDURAL CODE”)
Under article 232.4 of the Criminal Procedural Code, interception activities may take place for the purpose of detection, prevention and suppression of crimes commited by criminal groups, even if an individual crime would not incur a sentence of imprisonment for one year or more.
Under article 234 of the Criminal Procedural Code, after the public Prosecutor in question has reviewed the SIA’s request relating to the interception and the accompanying evidence, they may issue a prosecution warrant permitting the requested interception of communications.
On the basis of the prosecution warrant, an authorised official at the relevant SIA issues a resolution setting out the scope of the interception and containing various other details set out in Article 233 of the Criminal Procedure Code.
The SIA is also required to notify the Prosecutor of the results of the interception.
LAW OF THE REPUBLIC OF KAZAKHSTAN ON COMMUNICATION NO. 567-II DATED 5 JULY 2004 (THE “COMMUNICATION LAW”) AND THE RULES APPROVED BY GOVERNMENT RESOLUTION OF THE REPUBLIC OF KAZAKHSTAN NO 1593 DATED 23 DECEMBER 2011 (THE “RULES OF INTERACTION WITH THE SIA”)
Under article 15 of the Communication Law, operators of telecommunications networks in Kazakhstan (“Network Operators“) must provide organisational and technical assistance to the SIAs in relation to their interception activities, which includes the provision of access to the Network Operator’s customers’ service information.
Article 15 of the Communication Law also provides that Network Operators must operate their networks in compliance with the System of Operative Search Measures (“SOSM“), which are set out in the Rules of Interaction with the SIA. To comply with these measures, Network Operators must put in place the equipment and facilities required to allow SIAs to intercept communications.
Pursuant to Chapter 2 of the Rules of Interaction with the SIA, Network Operators must enter into a bilateral contract with SIAs, entered at the time of a specific interception, which governs the assistance the Network Operator will provide in relation to that interception. Under this contract, Network Operators are required to provide, among other things:
- necessary information required by the SIA for the purposes of carrying out interceptions;
- premises for the SIA and access to network channels;
- space for all equipment that the SIA requires, and routes for cabling;
- access to network infrastructure; and
- the technical capabilities for the SIA to carry out interceptions.
It follows from the Rules of Interaction that communications going over any Network Operator’s network may be lawfully intercepted by an SIA without the knowledge of the Network Operator.
THE TECHNICAL REGLAMENT ON GENERAL REQUIREMENTS ON SECURITY, FUNCTIONAL AND TECHNICAL REQUIREMENTS TO TELECOMMUNICATIONS EQUIPMENT IN THE PROCESS OF CONDUCTING OPERATIVE INVESTIGATIVE ACTIVITIES, APPROVED BY THE GOVERNMENT RESOLUTION OF THE REPUBLIC OF KAZAKHSTAN NO.805, DATED AUGUST 6 2010 (THE “TECHNICAL REGLAMENT“).
The Technical Reglament stipulates the standards, functions and requirements of the telecommunications equipment that is used to intercept communications and conduct other investigative activities authorised by the laws described in this report.
Disclosure of Communications Data
LAW OF THE REPUBLIC OF KAZAKHSTAN ON INVESTIGATION ACTIVITIES NO. 154-XIII DATED 15 SEPTEMBER 1994 (THE “LAW ON INVESTIGATION ACTIVITIES”) AND THE CRIMINAL PROCEDURAL CODE OF THE REPUBLIC OF KAZAKHSTAN NO. 231-V DATED 4 JULY 2014 (THE “CRIMINAL PROCEDURAL CODE”)
The procedure for obtaining communications data from operators of telecommunications networks (“Network Operators“) is the same as that for obtaining the right to intercept communications. Therefore the provisions of the Law on Investigation Activities and the Criminal Procedural Code described in paragraphs 1.1 to 1.3 above apply if a special investigation authority (as set out in paragraph 1.1, an “SIA“) wishes to obtain access to a Network Operator’s customer communications data.
LAW OF THE REPUBLIC OF KAZAKHSTAN ON COMMUNICATION NO. 567-II DATED 5 JULY 2004 (THE “COMMUNICATION LAW”)
Article 15 of the Communication Law states that where an SIA is permitted to carry out an interception, a Network Operator must provide the SIA with access to all its subscribers’ service data that is within the scope of the interception under the resolution from the head of the SIA.
This data includes, but is not limited to, identification information (addresses, identification numbers for both individuals and businesses, email addresses, telephone numbers and the VAT registration certificate date for businesses), billing information and details of the services provided to individual subscribers, the relevant subscriber’s IP address and other IP addresses and protocols used in communications over the data transmission network.
RULES APPROVED BY GOVERNMENT RESOLUTION OF THE REPUBLIC OF KAZAKHSTAN NO 1593 DATED 23 DECEMBER 2011 (THE “RULES OF INTERACTION WITH THE SIA”)
Chapter 2 of the Rules of Interaction of the SIA provides that the contract between a Network Operator and an SIA must include provision for the Network Operator to provide the SIA with all access to any subscribers’ service data which the Network Operator holds.
Additionally, under Article 15.1 of the Communication Law, Network Operators must collect and store all subscribers’ service data for two years.
National Security and Emergency Powers
LAW OF THE REPUBLIC OF KAZAKHSTAN ON NATIONAL SECURITY NO. 527-IV DATED 6 JANUARY 2012 (THE “LAW OF NATIONAL SECURITY”)
Under article 23 of the Law of National Security, state bodies, organizations and officials may take measures to ensure the information security of Kazakhstan, in particular to ensure:
- the maintenance of stable communications networks for the purpose of the security of Kazakhstan;
- the detection, prevention and suppression of leaks and losses of state secrets or information protected by other laws;
- the prevention of the blocking of transfers of data across any telecommunications network by other countries; and
- the maintenance and development of effective security for information technology systems and resources which contain State secrets or information that is confidential under other laws.
Interceptions on national security grounds must still be performed within the same legal framework as all other interceptions. Therefore, SIAs must still follow the procedures under the Law on Investigative Activities related to obtaining prosecution warrants to intercept private communication. An exhaustive list of the grounds for investigative activities is specified in Article 10 of the Law on Investigative Activities.
LAW OF THE REPUBLIC OF KAZAKHSTAN ON COMMUNICATION NO. 567-II DATED 5 JULY 2004 (THE “COMMUNICATION LAW”) AND THE LAW OF THE REPUBLIC OF KAZAKHSTAN ON THE STATE OF EMERGENCY NO. 387-II DATED 8 FEBRUARY 2003 (THE “EMERGENCY LAW”)
Under article 14 of the Communication Law and article 14-1 of the Emergency Law, certain government bodies can take control of a Network Operator’s network in one of the following emergency situations:
- social unrest which may cause or has already caused loss of life or property damage (as defined in Article 1.1 of the Emergency Law);
- natural disasters (defined widely as including fires, and ‘any dangerous natural phenomenon’ in article 1 of the Law of the Republic of Kazakhstan on Civil Defence No. 188-V dated 11 April 2014 (the “Civil Defence Law“)); or
- industrial disasters (defined in article 1 of the Civil Defence Law as including, but not limited to, explosions, industrial accidents in factories involving toxic or radioactive waste and transport-related accidents).
Article 5 of the Emergency Law states that a state of emergency can be declared by a decree of the President of Kazakhstan.
RULES APPROVED BY GOVERNMENTAL RESOLUTION OF THE REPUBLIC OF KAZAKHSTAN NO. 1489 DATED 31 DECEMBER 2013 (THE “RULES OF ACCESS TO COMMUNICATION”)
On the basis of the President’s declaration of the state of emergency, the Government creates a list of state bodies that are approved to have the right to the priority use of communications networks and the right to suspend or terminate networks and services.
During the state of emergency, any such specified government entity on this list may then make an application to a Network Operator setting out the level of access to the network it requires, which must be granted without the need for the usual bilateral contract. The government entity has discretion to determine how long it requires use of the Network Operator’s network and for what purpose during the state of emergency.
Uniform Rules of Interaction and Centralised Management of Telecommunications Networks of the Republic of Kazakhstan No. 1499, dated December 8 2011 (the “Uniform Management Rules”).
The Uniform Management Rules regulate, among other things, the process by which the state technical service may suspend (and subsequently resume) the network or services provided by a Network Operator in the event of receiving a lawful request to do so under the laws described above.
Oversight of the Use of Powers
LAW OF THE REPUBLIC OF KAZAKHSTAN ON INVESTIGATION ACTIVITIES NO. 154-XIII DATED 15 SEPTEMBER 1994 (THE “LAW ON INVESTIGATION ACTIVITIES”) AND RULES APPROVED BY JOINT ORDER OF THE MINISTER OF FINANCE AND OTHERS DATED DECEMBER 12, 2014 NO.565 (THE “RULES OF UNDISCLOSED INVESTIGATION ACTIVITIES”)
Articles 24 and 25 of the Law on Investigation Activities provide for the sole oversight procedure relating to interceptions of private communications and access to subscribers’ service data.
It is an internal procedure carried out by the General Prosecutor, deputies of the General Prosecutor, the Chief Military Prosecutor, regional Prosecutors and other Prosecutors identified as having equivalent seniority to regional Prosecutors, for example Prosecutors of the cities of Astana or Almaty, who may take action including but not limited to:
- examining the materials considered during the application for the interception;
- examining the activities carried out as part of the investigation for compliance with human rights laws. If these are found to have been breached, the prosecutor will issue a resolution to terminate the interception. The law of Kazakhstan is silent on what will happen to any information obtained from intercepted communications prior to the termination of the investigation. However, under paragraph 24 of the Rules of Undisclosed Investigation Activities and article 240 of the Criminal Procedural Code, any material relating to investigations that are not to be disclosed to the public (i.e. confidential communications which have been intercepted) are to be stored by the department of the SIA conducting the investigation until the case has been concluded;
- reviewing claims and enquiries about the conduct of the officials conducting the investigation. If any officers have acted unlawfully, the prosecutor has the power to start disciplinary proceedings; and
- setting out procedures for officials conducting an investigation to ensure that it complies with all relevant regulations.
This internal oversight procedure is also used where powers have been exercised on grounds of national security, and where a telecommunications operator’s networks or services have been shut down or suspended. There is no specific oversight procedure mentioned in the law of Kazakhstan for powers used in a time of emergency, but it is likely that this general oversight procedure, if any, would be adopted in these circumstances.
CIVIL PROCEDURAL CODE OF THE REPUBLIC OF KAZAKHSTAN (THE “CIVIL PROCEDURAL CODE”)
Under article 332 of the Civil Procedural Code, there is a general appeals process for individuals and Network Operators where access to web pages has been blocked or suspended following a court decision. An appeal can be lodged with the court in question within 15 days of the decision being made.
POWER TO SHUT DOWN NETWORKS OR SERVICE CATEGORIES
There is no general power of any government entity in Kazakhstan to order an operator of telecommunications networks (“Network Operator“) to shut their network down or suspend any service, unless a Network Operator fails to comply with its obligations under other laws.
Law of the Republic of Kazakhstan on Communication No. 567-II Dated 5 July 2004 (The “Communication Law”)
Under article 41-1 of the Communication Law, a network can be shut down or have its service suspended if it is used for criminal purposes, or if it used to spread information which breaches any law of Kazakhstan regarding elections, extremism and terrorism.
To do this, the General Prosecutor or the Deputy-Prosecutors of Kazakhstan must issue a prosecutor order to the Ministry of Investment and Development, which will proceed to shut down the network or access to its services.
Code of the Republic of Kazakhstan on Administrative Offences NO. 235-V Dated 5 July 2014 (The “Administrative Offences Code”)
Under Article 802 of the Administrative Offences Code, court proceedings can be brought against a Network Operator if it does not comply with the requirements of its licence, or if its technicians have not met the required qualification requirements.
Any individual or business can submit evidence that an offence has been committed to the court, and the court can make an order that the Network Operator’s licence be terminated or that the offending service be suspended.
Law of the Republic of Kazakhstan on Emergency Situations No. 387-II Dated 8 February 2003 (The “Emergency Law”)
Under article 14-1 of the Emergency Law, certain government entities, a list of which is determined by the Government of Kazakhstan, has the right to the priority usage of networks and the right to shut them down.
BLOCKING IP ADDRESSES AND WEB PAGES
Law of the Republic of Kazakhstan on Mass Media No. 451-1 Dated 23 July 1999 (The “Mass Media Law”)
There is no specific provision in the law of Kazakhstan related to blocking IP addresses or web pages. However, under article 13 of the Mass Media Law, distribution of mass media products (including information on web pages) can be blocked or suspended if, among other things, those web pages:
- disclose state secrets or information which is made confidential by law;
- promote drug use, violence, cruelty or social, racial, national, religious or genetic superiority. The latter means any propaganda which states some people are superior to others on the basis of social status, race, nationality, religion or genetic makeup.
- contain pornographic material;
- disclose information which damages the integrity of Kazakhstan or which compromises the security of Kazakhstan;
- promote extremism or terrorism; or
- incite racial hatred.
Criminal Procedural Code of the Republic of Kazakhstan No. 231-V Dated 4 July 2014 (The “Criminal Procedural Code”)
Under Chapter 36-3 of the Criminal Procedural Code, applications to the court to suspend or block access to foreign mass media (including online resources) under article 13 of the Mass Media Law can be made by any individual or business, by a prosecutor or by a government entity. A court order to block access to or suspend a web page will be executed by the Ministry of Investment and Development.
Publication of Laws and Aggregate Data
Publication of Laws
Constitution of Kazakhstan
There is no restriction on a Network Operator publishing the laws to which it is subject. Article 4(4) of the Kazakhstan Constitution states that for a law to be applied it must have been officially published.
Publication of Aggregate Data
Criminal Procedural Code of the Republic of Kazakhstan No. 231-V Dated 4 July 2014 (The “Criminal Procedural Code”)
Under Article 241 of the Criminal Procedural Code, any data relating to an ongoing investigation should remain confidential until that investigation has been completed. This includes investigations where communications have been intercepted or access to a subscriber’s service data has been granted to special investigation authorities (as defined in paragraph 1.1, “SIAs“). Operators of telecommunications networks (“Network Operators“) bear the liability if this information is disclosed.
Law of the Republic of Kazakhstan on State Secrets No. 249-1 Dated 15 March 1999 (The “Law on State Secrets”).
Under the Law on State Secrets, information about the methods of investigation is a state secret and is therefore confidential, which includes any bilateral contract setting out the assistance Network Operators will provide to the SIAs, as described in paragraph 1.3.