Sub-Group on High-Tec Crime - G8

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The "problems" for the G8/P8 states were broadly defined at the 1998 Birmingham Summit under the UK Presidency as:

"The main obstacle facing a G8 achievement of any goals set out in Birmingham appears to be the barrier of red tape obstructing law enforcement agencies from cooperating across national jurisdictions. The G8 will need to address the inconsistencies between justice systems from one member country to another if the problem of international crime is to be dealt with effectively."

The key phrases here are "red tape" (procedures, control and accountability) and "inconsistencies between justice systems" (data protection and legal restrictions). In this context the Minutes of the G8 Subgroup on High-Tec Crime held in Paris on 18-21 May 1999 sets out a whole agenda influencing the EU-FBI plan.

The first issue the Minutes cover is the "Preservation of Traffic data" covering "historical traffic data" and the "collection of future data". The Minutes state that:

"Delegations agreed that privacy legislation (e.g. implementing the 1995 and 1997 EU Data Protection Directives), national laws implementing the Directives, and market forces are among the significant obstacles to law enforcement's ability to obtain historical data for use in criminal investigations. (Disclosure of that traffic to foreign investigators is also complicated by these and other impediments). Privacy directives, to the extent they require the deletion of connection information, can effectively erase the trail of connections that might otherwise identify the source of criminal activity."

It goes say that a further impediment is "anonymous free Internet services.. contribute to the absence of useful traffic data."

Two solutions are suggested for this "problem". The meeting of G8 Justice and Interior Ministers in Moscow on 19-20 October adopted "Principles on Transborder access to stored computer data" defined simply as covering "law enforcement agents employed by law enforcement agencies.. investigating criminal matters". The "Principles" say "each State" will ensure that data is preserved, "particularly data held by third parties such as service providers" for the purpose of seeking:

"access, search, copying, seizure or disclosure, and ensure that preservation is possible even if necessary only to assist another State."

The second "problem" with "historical data" is that there is no obligation for service and internet providers to keep data of their users messages etc. The 1997 EU Directive on Telecommunications Sector Data Protection allows service providers to keep traffic data for billing disputes but this is rarely used as users are not billed by individual connection. Some countries allow traffic data to be preserved to guard against subscriber fraud but the Minutes observe there are no provisions for "infrastructure protection" or "other suspected illegal activity". The Sub-Group's view is that G8 should prepare "G8 Recommendations on Data Preservation" and that at national level the EU Directive should "either mandate or allow ISPs to retain particularly critical categories of traffic data for minimum time periods."

As to "future traffic data" ("real-time connection information", as it is happening) a number of delegations reported that national laws "imposed heightened limitations" on the "ability of law enforcement" to obtain future traffic data and "share it with foreign law enforcement". Several countries treated "future traffic data" as "interception" which "involves more stringent prerequisites and may only be available for certain offences". Moreover, although national laws may permit the "capture of future traffic data for domestic purposes, its laws may not permit it to do so solely for the benefit of a foreign state". The Sub-Groups solutions to this "problem" include treating "future traffic data" on the same basis as "historical data" to avoid being defined as interception and amending Mutual Legal Assistance Agreements (MLAA's) and national laws to allow interception on behalf of foreign states and agencies.

It also suggests that "important investigative techniques" could be used: "for the benefit of a foreign government and in the absence of a criminal offence or serious criminal offence, in the conduit country". This perhaps fits in with the "hypothetical intrusion exercise" the Sub-Groups agencies are testing their investigative techniques on - this suggests an interventionist, pro-active approach which could "interfere" with telecommunications.

The "Principles on Transborder Access", agreed in Moscow, also covered instances where there was a formal request for access to data (under MLAA's) and "Transborder access to stored data not requiring legal assistance" - this latter aspect covers accessing "publicly available (open source) data" and:

"accessing, searching, copying, or seizing data stored in a computer system located in another State, if acting in accordance with the lawful and voluntary consent of a person who has the lawful authority to disclose to it that data."

In effect, US or UK security agencies could gain access to data where authorised to do so by a US or UK multinational operating in the surveilled country.

The G8 states have set up a 24-hour "point-of-contact network" that also acts as a "warning system" which "could be used proactively". All EU and Council of Europe states have been invited to join the network, with Spain and Denmark responding first.

The "Lyon Group"

While ILETS works on technical matters (and their policy implications) a much more high-powered driving force on the global interception of telecommunications is the "Lyon Group" and especially its "High-tech Crime Subgroup of G8 Senior Experts' Group on Transnational Organised Crime."

The G8 Senior Experts' Group on Transnational Organised Crime came out of the G8 Prime Ministers meeting on 27 June 1996 in Lyon, France. The first "G" Prime Ministers' Summit was held in Rambouillet, France in 1975 comprised of US, France, UK, Germany, Italy and Japan. Canada joined in 1976 (making G7) and in 1977, at the London Summit, the European Community joined its membership. The European Community's delegation is made up of a EU Presidency representative (currently Finland), the head of the European Commission (Romano Prodi, who previously attended as part of the Italian delegation) plus the Commissioner for external affairs (Chris Patten). Since 1994 Russia attended its meetings and became a full member at the Birmingham Summit in 1998, making up G8.

All "Summit" meetings, such as EU Summits and G8 Summits try to sort out outstanding differences between members but the real work is done beforehand by officials and "experts" - and much of the latter's work goes through ôon the nodö into the final conclusions. G8 Summits (and other meetings) are prepared by high-ranking officials known as "sherpas" and "sous-sherpas". National "sherpas" are each supported by two "sous sherpas" (one covering foreign affairs and finance, the other "political" matters including justice and home affairs).

Alongside G8 is "P8" ("Political 8") which deals amongst other matters with terrorism, crime and illegal migration which since the Lyon decision has led to the creation of a series of other groups and meetings (such as the G8 Justice and Interior Ministers who last met in Moscow on 19-20 October 1999).

Sources: P8 - Senior Experts Group Recommendations: "To combat Transnational Organised Crime" (Paris, 12 April 1996); Summit Performance Assessments by Issue: G8 1998 Birmingham: Crime; Evaluation Report on Ireland on Mutual Legal Assistance and Urgent Requests, ref 9079/99, CRIMORG 70, 18.8.99.

Statewatch bulletin, November-December 1999

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