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EU Phone Tapping Extension
The Irish government has agreed with its EU partners to introduce a system whereby it will be possible to monitor all aspects of global telecommunications. At present in Ireland there is a legal framework for allowing phone-tapping under certain circumstances. This legal framework will now be expanded to include the tapping of all types of telecommunications including mobile phones, fax, telex, e-mail and all satelite based communications.
|By Dara Molloy|
The agreement is with the EU partner states but is likely to be extended to include other countries throughout the world. This will mean that any country that wishes to conduct surveillance on an Irish citizen will be able to do so through co-operation with the Irish authorities under certain circumstances.
A similar law has been passed in the United States. It was this US document, drawn up by the FBI, that provided the draft for the EU agreement. However, in the States, the proposed law raised considerable controversy. The bill "Law Enforcement Requirements for the surveillance of electronic communications" was first introduced to Congress in 1991 but had to be withdrawn. A second bill was introduced and again withdrawn in 1992. Finally, in November 1994 the third draft of the bill was passed into law and signed by President Clinton. It was named "Communications Assistance for Law Enforcement Act".
The EU has now agreed identical procedures to those passed into law by the US. However, in the US case, the enactment of the law went through a long democratic process, including informed debate in Congress and in the media. Civil liberties groups mounted a huge campaign against the second draft, which led to its withdrawal. In contrast, the EU decision has gone through without any debate, even at EU ministerial level. The EU decision was made by 'written procedure'. This means that ministerial departments communicated through telex messages and the final document was agreed by the Council of Justice and Home Affairs Ministers without round-the-table discussion.
Furthermore, although the EU decision, called 'Requirements' was made in January 1995, it was not until the 4th November 1996 that the document became public, when published in the Official Journal. Another document 'Memorandum of Understanding', drawn up by the Council of Justice and Home Affairs Ministers on the 23rd November 1995, and one to which all the participant countries will be asked to subscribe, has not been published in any form.
The civil liberties group Statewatch, based in London, was the first to reveal the significance of this secretive decision-making to the public. A special report by Statewatch, published at the end of February, detailed plans for "a joint initiative drawn up by the Council of the European Union and the US Federal Bureau of Investigation (FBI) to introduce a global system for the surveillance of telecommunications - phone calls, e-mails and faxes".
The controversy was immediately taken up by the Gaurdian newspaper, which published an article on March 24th entitled "EU guards its secrets". The headline was: "A small British civil liberties group monitoring and leaking decisions taken behind closed doors is exposing the limits of the European Union's supposed drive for greater 'openness'." It prompted an immediate response from Michael Howard, the Home Secretary, who claimed it was "not a significant document" and therefore did not require parliamentary or public scrutiny. However, Tony Bunyan of Statewatch replied, in a letter to the newspaper, that if parliament or the public became aware that this decision would lead to 'law enforcement agencies' the world over having the power to intercept all our phone and telecommunications messages, and even to have access to our homes and offices, they might indeed become very alarmed. The document would then become extremely 'significant'.
In Ireland, the decision has neither had parliamentary nor media coverage.
The context for this decision is the Maastricht Treaty signed on 1st November 1993. Under this treaty, a 'third pillar' was introduced to cover policing, immigration and asylum, and legal cooperation. The K4 Committee was set up to oversee this third pillar. It is comprised of senior officials from Interior Ministries and prepares reports to go to the Council. Under the K4 Committee there are three Steering Groups covering policing and customs, immigration and asylum, and legal cooperation (civil and criminal) to which a series of Working Groups report.
During 1994, the K4 Committee discussed the draft Resolution on the lawful interception of telecommunications, and the 'Requirements' to be placed on network and service providers. These 'Requirements' will oblige telecommunications companies to give security and intelligence agencies the key to codes installed in equipment sold to private customers. The Committee decided to refer the documents to the Council of Ministers. However, the ministerial decision was eventually made by 'written procedure' and without debate or publicity. On the adjoining page you will see how secretive are the procedures of the 'third pillar' process.
The EU has now gone ahead to invite other countries' participation in the scheme. Australia, Canada and the US have already indicated their support, as has Norway. Hong Kong and New Zealand are considering it. Other countries are to be invited in over time. The EU argues, in its invitation to these countries, that "the possibilities for intercepting telecommunications are becoming increasingly threatened" and there is a need to introduce "international interception standards" and "norms for the telecommunications industry for carrying out interception orders" in order to "fightorganised crime and for the protection of national security."
Statewatch on 27th November 1996 lodged six complaints against the Council of Ministers concerning public access to documents from within this 'third pillar'. The complaints charge the Council of Justice and Home Affairs Ministers, the K4 Committee, and its Steering Groups with a series of decisions which constitute maladministration. This maladministration includes denying public access to documents, refusing to supply information, and abuse of power. All the complaints concern measures or reports already adopted or considered.
These complaints were judged 'admissible' by the European Ombudsman on January 16th and forwarded to the Council for a response. However, the Council of Ministers, in its response on March 24th, said that the European Ombudsman is not allowed to refer complaints to them concerning the 'third pillar'. In effect, Statewatch says, "the Council is now challenging the role of the European Ombudsman and trying to tell him his job."
However, on June 20th, the Council did a complete, if reluctant, U-turn and sent the Ombudsman a response to each of the six complaints.
The Council is still not conceding the Ombudsman's general right to inquire into refusal of access to documents concerning justice and home affairs. However, the Council has accepted the right of EU citizens to put complaints to the European Ombudsman on justice and home affairs, something they refused to recognise until now. They have promised that this right will be inserted into the revised Amsterdam Treaty.
As Statewatch is still not satisfied, the European Ombudsman will continue to deal with the issues. He may yet declare the complaints as a case of 'maladministration' the first ever. If so, it will be reported back to the European Parliament. It is then up to the European Parliament to decide whether to take a case to the European Court of Justice.
All in all, despite protestations and promises of greater openness, it is clear that the EU leaders are discussing and deciding on many matters about which they would prefer us to know little or nothing.
Decisions within the 'third pillar' of the EU are made without proper democratic accountability. The areas affected by these decisions are all connected with people's rights including: policing, security, immigration, asylum, refugees, extradition and customs.
EU PROCEDURES UNDER "THIRD PILLAR"
1. Development of measures in Working Parties of "Experts" police, immigration, customs, and internal security agencies. Right of access: nobody*.
2. Findings of Working Parties pass to three Steering Groups of Interior Ministry officials and "experts". Right of access: nobody.
3. Draft measure passes to K4 Committee which resolves any disagreements. By the time a measure leaves K4 Committee it is analogous to a parliamentary Bill. Right of access: nobody.
4. COREPER, the committee of permanent representatives of each EU government, formally agrees measures to be presented to the Council of Justice and Home Affairs Ministers. On rare occasions COREPER resolves remaining disagreements. Right of access: nobody (#).
5. Council of Justice and Home Affairs Ministers (JHA) adopt measures in closed, secret, meetings. Right of access: nobody(#).
6. Availability of decisions taken:
a) Some decisions can be obtained immediately, some with a great deal of effort by applying for them and waiting up to three months, and some not at all.
b) measures adopted are not open to amendment by the European or national parliaments.
NORMAL DEMOCRATIC PROCEDURES
1. Publication of background arguments and information through Green and/or White Papers or statement in parliament. Right of access: everyone.
2. Publication of proposed legislation, parliamentary Bill. Right of access: everyone.
3. Public debate, spanning stages 1 and 2, in the media, among academics, NGO's and community groups. Right of access: everyone.
4. Parliamentary procedure where proposal is open to debate and amendment. Right of access: everyone.
5. Adoption of measures which pass into law and practice. Right of access: everyone.
6. Availability of decisions taken. Right of access: everyone.
(*) Nobody = nobody except governments and officials.
(#) Partial "consultation" with a few national parliaments.
Dara Molloy is co-editor of The AISLING Magazine and lives on Inis Mór.
Material for this article was taken from Statewatch newsletter vol 6 no 6 Nov - Dec 1996, vol 7 no 1 Jan - Feb 1997, and vol 7 no 3 May-Jun 1997. Available from Statewatch, PO Box 1516, London N16 OEW, UK. Tel: (00 44) 0181 880 1727. E-mail: email@example.com.
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