Statewatch News online: Surveillance of telecommunications - 22 April 2002

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EU surveillance of telecommunications
Mystery of the missing minutes which surface nearly a year late

Under the Swedish Presidency of the European Union a proposal was being discussed to update the infamous ENFOPOL 98 - which sought to extend the surveillance of telecommunications to e-mails and the internet. This was not adopted because of a huge outcry by civil society. ENFOPOL 98 resurfaced as ENFOPOL 29 in a new and revised form - in the spring of 2001 - setting out how the "Requirements" to be placed on service and network providers should be interpreted in the EU (the "Requirements" were adopted in the EU on 17 January 1995 in secret by "written procedure").

ENFOPOL 29 was approved at the meeting of COREPER (the high-level representatives committee drawn from each EU member state) on 23 May 2001 and it appeared on the "A" Point agenda (ie: it would simply be nodded through by the Ministers without debate) for the Justice and Home Affairs Council (JHA) on 28-29 May 2001. (Council "Resolutions" do not have to be sent to national parliaments or the European parliament they can simply adopted without any consultation)

ENFOPOL 29, a 16-page document entitled "Draft Council Resolution on law enforcement operational needs with respect to telecommunications networks and services", did not appear on the Council press release for the JHA Council on 28-29 May. However, the "spin" was that it had been agreed subject to a reservation by Germany (whether by the government or the parliament was unclear). On 20 June 2001 ENFOPOL 29 was superseded (after linguistic checking) as a "Legislative" proposal in the form of ENFOPOL 55. But nothing happened, the measure appeared never to have been adopted so a mystery surrounded its fate.

That is until last Friday, 19 April 2002. Suddenly on the Council's Register a document appeared dated: 4 April 2002 and its subject matter was "Outcome of proceedings: Article 36 Committee on 3 and 4 May 2001. The Register clearly states that the date of the meeting was: 3 May 2001, the date of the document: 4 April 2002 and the archive date as: 19 April 2002.

The delay in producing the "Outcome of proceedings" of the Article 36 Committee on 3/4 May 2001 for 11 months is quite extraordinary - it is normal procedure for the "Outcomes" of the last meeting to be agreed at the next one. In this case the next meeting of the Article 36 Committee was on 10 May 2001 and the "Outcomes" of this meeting were produced on 18 May 2001 - just over a week later.

On investigation the mystery deepens as the formal Minutes of the JHA Council on 28-29 May (produced in the autumn) state that "Item 16" (ENFOPOL 29) on the "A" Points agenda was not adopted.

The reason for the apparent cover-up may lie in the belated "Outcome of Proceedings" of the Article 36 Committee meeting on 3/4 May 2001 which include the following:

"The German delegation insisted on the highly political sensitiveness of this file [ENFOPOL 29] advised the Presidency to inform the European Parliament despite the fact that it is not supposed to deliver an opinion on draft resolutions. The Commission indicated that Commissioner Vittorino might intervene on this issue at the 28-29 May Council. The Presidency insisted on the need to proceed quickly on this file. It undertook to inform the Parliament on the substance of it."

The German delegation clearly took seriously the need to properly consult the European Parliament in the light of the previous outcry in 1998/99. However, there is no evidence on the record that the Commission raised the issue or that the Swedish Presidency "informed" the European Parliament of its "substance" (which is is euphemism for saying the parliament would be told what was in the proposal but would not be formally consulted, that is, asked to prepare a report on its views).

The mystery of ENFOPOL 98 which became ENFOPOL 29 then ENFOPOL 55 is thus solved, it was never adopted. However, in the present post 11 September climate, where the demands of the EU's law enforcement agencies increasingly override liberties, rights and privacy, its reappearance for the third time is to be expected.

ENFOPOL 55 Council Resolution on law enforcement agencies needs (previously ENFOPOL 29 & 98)
ENFOPOL 29 COR 1: updated version of 14 April 2001
ENFOPOL 29, Enfopol 98/19 re-visited, 30 March 2001
ENFOPOL 19, 15 March 1999: Interception of telecommunications - Draft Council Resolution on new technologies (final version of ENFOPOL 98, this was never adopted)
ENFOPOL 98 REV 2 , 3 December 1998: Interception of telecommunications - Draft Council Resolution on new technologies
ENFOPOL 98 REV 1, 10 November 1998: Interception of telecommunications - Draft Council Resolution on new technologies
ENFOPOL 98, 3 September 1998: Interception of telecommunications: Council Draft Resolution in relation to new technologies

(Story filed 22.4.02)

for full background to this issue please see Statewatch's: S.O.S.Europe

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