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EU-FBI telecommunications surveillance plan: Commission working party concerned

Statewatch bulletin vol 9 nos 3 & 4 (May-August 1999)

A report from the Data Protection Working Party for the Commission DG XV adopted on 3 May 1999 is critical of the privacy implications of the "Council Resolution of 17 January on the lawful interception of telecommunications" (The International User Requirements drawn up by the FBI and adopted by the EU, known as IUR 95). The Working Party is comprised of data protection experts, its chair Peter Hustinx is one of the Dutch members of the Schengen Joint Supervisory Authority.

Their report says that the data to be collected would cover both the "target persons and any persons with whom they enter into communication". It expresses their concern at the "scope" of the measures envisaged and in particular with the "Memorandum of Understanding" to exchange data with non-EU states who "are not subject to the requirements of the European Convention on Human Rights and of Directives 95/46/EC and 97/66/EC."

The Working Party thus "wishes to draw attention to the risks of abuse with regard to the objective of the tapping, risks which would be increased by an extension to a growing number of countries - some of which are outside the European Union - of the techniques for intercepting and deciphering telecommunications.

Some of the provisions in IUR 95 would, they say, "conflict with more restrictive national regulations in certain countries in the European Union". They give examples of access to data concerning calls and "forbidding operators from disclosing interceptions after the fact". Moreover, when satellites or the Internet is used, it must not lead to "a lowering of the level of confidentiality and protection of the privacy of individuals." The Working Party's recommendations call for "national law to strictly specify":

1. "the prohibition of all large-scale exploratory or general surveillance of telecommunications."
2. "compliance with the principle of specificity, which is a corollary of forbidding all exploratory or general surveillance. Specifically, as far as traffic data are concerned, it implies that the public authorities may only have access to these data on a case-by-case basis, and never proactively and as a general rule."
3. "that a person under surveillance be informed of this as soon as possible."
4. "the recourse available to a person under surveillance"
5. "the publication of the policies on the interception of telecommunications as they are actually practised, for example, in the form of regular statistical reports"
6. "the specific conditions under which the data may be transmitted to third parties under bilateral or multilateral agreements"

The existing and planned UK law would fail on a number of these counts. Point 2 is directly contrary to what is being planned for the Iridium ground station in Italy where 12 EU member states are demanding Italy agree to general, unlimited and open-ended interception warrants. Point 6 taken together with the Working Party's grave reservations about the transfer of data to and from non-EU states raises major questions about Europol's planned agreements with third states and agencies within third states.

Their report is on:

http://www.europa.eu.int/comm/dg15/en/media/dataprot/wpdocs/wp 18en.htm

EU-FBI plan adopted in Holland

Statewatch bulletin vol 9 nos 3 & 4 (May-August 1999)

The Dutch parliament, overruling objections from lawyers, employers and the telecommunications industry, has agreed that the Ministry of Justice should be authorised to tap into any form of communication, including internal company networks. Any new service offered must also be "tappable". KPN, the major provider of telecommunications in the Netherlands, has estimated that the potential cost could be astronomical.

There is one exception to this measure. The internet will remain tap-free. However the service provider Xs4all is not impressed by the concession: "...it makes no practical difference whether we are included in this or not", a spokesman pointed out. Nobody, not even the government knows how to tap the internet."

Volkskrant 8.4.99