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New Convention to legitimise surveillance - group of "20" implementing EU-FBI plan

Statewatch bulletin, July-October 1997, vol 7 nos 4 & 5

The EU-FBI plan to create a global system for the surveillance of telecommunications - phones calls, faxes and e-mails - has taken three major steps forward - the first is a new group of "20" outside EU structures to effect the plan, the second are plan for all interceptions to be routed through just 3 or 4 EU states, and the third is a new draft EU Convention to "legitimise" surveillance by "law enforcement agencies".

Earlier this year the K4 Committee minutes noted that work on this is being developed "outside the third pillar" structures. Statewatch has learned that the plan is being developed outside the structures of the European Union by a group of 20 countries - the 15 EU member states plus the US, Canada, Norway, Australia and New Zealand (see Statewatch, vol 7 no 1).

The group of "20" is not accountable through the Council of Justice and Home Affairs Ministers or to the European parliament or national parliaments. Using the "Memorandum of Understanding", signed on 23 November 1996 by individual EU members states, they are now cooperating with the five non-EU states on a multilateral basis to ensure that the new satellite-based service and network telecommunications providers put telecommunications under surveillance at the request of "law enforcement agencies". The Australian government introduced legalisation to fall in line with the EU-FBI plan on 2 October. It claimed that the lack of legal powers had been delaying new systems because there was no obligation on service providers to allow police and security agencies to intercept communications. The police and security agencies have also had to pay the service providers to help them, under the new law the cost will be borne by the companies. The EU will "legitimate" its participation through a new Convention on mutual assistance in criminal matters which was re-written after the report by the High Level Group on Organised Crime (see Statewatch, vol 7 no 2) and a secret seminar in the Hague on 25-26 November 1996. Conventions, such as this one, adopted by the EU under Article 3.2.c of Title VI of the Treaty on European Union once agreed have to be ratified by each EU national parliament - but the parliaments are not allowed to amend or change a single "dot or comma".

The introduction of the surveillance of telecommunications in the EU has four elements:

1. a) the initial agreement between the US (in effect the FBI) and the EU Member States (which adopted the "Requirements" laid down by the FBI) to cooperate. The US Congress adopted the provision in October 1994 and the EU hastily followed by adopting the same provisions - without discussion in the Council of justice and Home Affairs Ministers - by "written procedure" in January 1995 (see Statewatch, vol 7 no 1).
2. b) the "Memorandum of understanding" built on the joint EU-FBI "Requirements" by providing a mechanism to create an initial group of "20". A report to the K4 Committee in April report notes that the Council of Europe is working on "nearly identical instruments on mutual assistance" so it can be expected that the six EU applicant countries will have to adopt the new Convention as another condition of entry.
3. c) with agreement to cooperate on the basis of the "Memorandum" the group of "20" can work together to ensure that the major providers of the new satellite-based telecommunications systems adhere to the "Requirements" - in effect to ensure compliance by multinational companies.

The new era of satellite-based telecommunications will see just four companies - Iridium, Globalstar, Odyssey and ICO - will control the "global network of mutually co-operating satellites". In the EU it is expected that there will only be 3 or 4 "ground stations" linked to these systems - "in France and Italy and perhaps Finland, the UK and Germany". All requests for interception orders are, under the draft Convention, to be effected through these "ground stations" and therefore through the countries hosting them.

1. d) the finally element is the need, within the EU, to ensure that "law enforcement agencies" cooperation to intercept telecommunications has a legal basis. The draft Convention on mutual assistance in criminal matters in Articles 6-8 set out the terms of this cooperation.

Although the new Convention is being presented as dealing with "organised crime" and the provisions on "controlled deliveries" and on the surveillance of telecommunications are a direct result of the "Action Plan on Organised Crime" drawn up by the High Level Group on Organised Crime its effect is much wider. The 1959 Council of Europe Convention, which the new Convention seeks to "supplement and facilitate", says in its Explanatory report that the objective is that the Contracting Parties:

"afford each other the widest measure of mutual assistance in proceedings in respect of offences the punishment of which falls within the judicial authorities of the requesting Party. Provision is thus made for minor offences as well as for other, serious matters.."

There is no limitation in the 1959 Convention to "organised crime" or to "serious crime", it simply concerns any punishable offence however minor.