10 February 1997
A Statewatch report, 10 February 1997
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"The EU, in cooperation with the FBI of the USA, is launching a system of global surveillance of communications to combat "serious crime" and to protect "national security", but to do this they are creating a system which can monitor everyone and everything. The EU will be able to trawl the airwaves for "subversive" thoughts and "dissident" views and, with its partners, across the globe."
"It seems extraordinary given the concern over the Police Bill in the UK and the "Clipper chip" in the USA that there has been no debate over the creation of a global telephone tapping system initiated by the EU and the USA and supported by Canada, Australia, Norway and Hong Kong."
"the UK Parliament, like many others in the EU, has been by-passed in the most blatant way. To claim as the Home Secretary does that the "Memorandum of Understanding" is "not a significant document" and to fail to send the main EU Council Resolution to parliament for scrutiny is quite extraordinary when the Police Bill - which extends police surveillance - is going through parliament."
EU-FBI: global tapping system
The Council of the European Union and the FBI in Washington, USA have been cooperating for the past five years on a plan to introduce a global telecommunications tapping system.
The system takes advantage of the liberalisation of telecommunications - where private companies are taking over from national telephone systems - and the replacement of land/sea based lines and microwave towers by satellite communications.
Telephone lines are now partly land-based or under sea or via microwave land-based towers but the new generation of telecommunications will be totally satellite based.
The EU-FBI initiative notes the demise of:
1. state-owned telephone companies
2. nationally-based telephone systems
And is concerned about:
3. the problems faced with intercepting "mobile" phones and encrypted communications
And wants to ensure:
4. there is harmonisation of national laws on interception
5. to ensure that telecommunications provider business cooperate with the police and internal security
6. the equipment produced has standards which can be intercepted
7. as many countries as possible to sign up and thus create a de facto global system (through provisions of equipment etc to third countries)
A related disclosure in a book by Nicky Hager shows that instead of "suspects" and "targets" the ECHELON system simply trawls the airwaves for "subversive thoughts" in written form and increasingly in verbal form.
ECHELON is run under the 1948 UKUSA agreement by the US, UK, Canada, New Zealand and Australia.
The Trevi decision
The first reference to this initiative was at a Trevi Ministers meeting in December 1991 which decided that:
"a study should be made of the effects of legal, technical and market developments within the telecommunications sector on the different interception possibilities and of what action should be taken to counter the problems that have become apparent"
At the meeting of Trevi Ministers in Copenhagen in June 1993 they agreed the text of a "questionnaire on phone tapping" which was sent to each Member State in July 1993 and to the new members (Finland, Sweden and Austria) in September 1993 (see below).
At the first meeting of the new Council of Justice and Home Affairs Ministers in Brussels on 29-30 November 1993 they adopted the following Resolution on "the interception of telecommunications" which speaks for itself and reproduced here in full:
"COUNCIL RESOLUTION ON THE INTERCEPTION OF TELECOMMUNICATIONS
1. calls upon the expert group to compare the requirements of the Member States of the Union with those of the FBI;
2. agrees that the requirements of the Member States of the Union will be conveyed to the third countries which attended the FBI meeting in Quantico and were mentioned in the memorandum approved by the Ministers at their meeting in Copenhagen (Sweden, Norway, Finland (countries applying for accession to the European Communities), the USA and Canada) in order to avoid a discussion based solely on the requirements of the FBI;
3. approves for practical reasons the extension to Hong Kong, Australia and New Zealand (which attended the FBI seminar) of the decision on co-operation with third countries which was taken at the Ministerial meeting in Copenhagen;
4. hereby decides that informal talks with the above-named countries may be envisaged: to that end the Presidency and the expert group might, for example, organize a meeting with those third countries to exchange information."
Source: "Interception of communications", report to COREPER, ENFOPOL 40, 10090/93, Confidential, Brussels, 16.11.93.
Main Resolution on the "lawful interception of communications"
The draft Resolution on the "lawful interception of communications", an initiative by the Netherlands (which set out the "Requirements", see below) was discussed in the K4 Committee in March, April, November and December 1994.
The JHA Council discussed the draft Resolution in March 1994 but it was only formally adopted by "written procedure" (by telexes to Member States dated 21.12.94, 9.1.95, and 18.1.95: source Council of the European Union; the last date is after the Resolution was agreed) on 17 January 1995. The decision was not published in any form for almost two years - on 4 November 1996 it finally appeared in the Official Journal.
The Resolution has three parts: First, the short Resolution which says:
"the legally authorised interception of telecommunications is an important tool for the protection of national interest, in particular national security and the investigation of serious crime."
Second, the "REQUIREMENTS" which place a whole series of obligations on: network providers, eg: satellite communications networks; and on service providers, who provide the equipment for national telecom centres, business, groups and individuals. And finally, a Glossary of definitions.
The "Requirements" are based on the needs of "law enforcement agencies" (defined as "a service authorised by law to carry out telecommunications interceptions") who "require access to the entire telecommunications transmitted.. by the interception subject" (defined as: "Person or persons identified in the lawful authorisation and whose incoming and outgoing communications are to be intercepted") who is the subject of an "interception order" defined as: "An order placed on a network operator/service provider for assisting a law enforcement agency with a lawfully authorised telecommunications interception."
The "law enforcement agencies" are required to be provided with access not just to the content of a communication, in whatever, form, but also "associated data", "post-connection" signals (eg: conference calling or call transfer), all numbers called, all numbers called by - in both cases even if a connection is not made - plus "realtime, fulltime monitoring capability", the location of mobile subscribers, simultaneous and multiple interceptions "by more than one law enforcement agency", and "roaming" by mobile phone users "outside their designated home serving area".
The network operators and service providers are expected to provide "one or several" permanent "interfaces from which the intercepted communications can be transmitted to the law enforcement monitoring facility." And, if they provide "encoding, compression or encryption" to the customer they must provide it en clair (decrypted) to the law enforcement agencies.
Finally, they are obliged to ensure that:
"neither the interception target nor any other authorised person is aware of any changes made to fulfil the interception order... [and] to protect information on which and how many interceptions are being or have been performed, and not to disclose information on how interceptions are carried out."
Source: "Memorandum of Understanding concerning the lawful interception of telecommunications", ENFOPOL 112, 10037/95, Limite, Brussels, 25.11.95; this report contains the "Memorandum" with the Resolution adopted on 17 January 1965 attached. The Resolution was published in the Official Journal on 4.11.96, ref: C 329 pages 1-6.
Memorandum of Understanding on the Legal Interception of Telecommunications
The "Memorandum of understanding with third countries" (later described as the "Memorandum of Understanding on the Legal Interception of Telecommunications") was discussed at the K4 Committee in November 1994.
The significance of the "Memorandum" is that it extends the agreement on the surveillance of telecommunications to non-EU countries who are being invited to adopt it - and with it the "Requirements".
The Memorandum of Understanding was signed by the 15 EU Member States on 23 November 1995 at the meeting of the Council of Justice and Home Affairs Ministers.
The contact addresses for signatory countries and for further information, which confirms the EU-USA link, should be sent to:
"a) Director Federal Bureau of Investigation,
Attention: Information Resource Division,
10 Pennsylvania Avenue, N.W.,
Washington D.C. 20535
b) General Secretary of the Council of the European Union,
FAO The President,
Rue de la Loi 175,
The number of signatories to the "Memorandum" is open-ended, any country can join providing the existing member states agree.
It invites "participants" because "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 "fight.. organised crime and for the protection of national security."
The strategy appears to be to first get the "Western world" (EU, US plus allies) to agree "norms" and "procedures" and then to sell these products to Third World countries - who even if they do not agree to "interception orders" will find their telecommunications monitored by ECHELON (see below) the minute it hit the airwaves.
Source: "Memorandum of Understanding concerning the lawful interception of telecommunications", ENFOPOL 112, 10037/95, Limite, Brussels, 25.11.95.
"not a significant document" - the Home Secretary
The Chair of the Select Committee on the European Communities in the House of Lords, Lord Tordoff, took up the "Memorandum" with the Home Secretary, Michael Howard, in an exchange of letters on the Committee's access to documents for scrutiny.
On the subject of the "Memorandum of Understanding on the Legal Interception of Telecommunications" Mr Howard told Lord Tordoff:
"The Memorandum of Understanding is a set of practical guidelines to third countries on the lawful interception of telecommunications. It is not a significant document and does not, therefore, appear to meet the criteria for Parliamentary scrutiny of Title VI documents."
It is quite clear from this Briefing that the "Memorandum" is not an insignificant document concerning as it does a EU-US plan for global telecommunications surveillance.
The "Memorandum" itself is just two pages. It is the full text of the "Resolution" attached to it which demonstrates its full meaning.
However, not only did Mr Howard not think the "Memorandum" was "a significant document" he also apparently believes the attached Resolution also insignificant as he did not submit it to the House of Lords Committee for scrutiny prior to its adoption in January 1995 or thereafter.
Source: Correspondence with Ministers, 9th Session 1995-96, HL 74, pages 26-29.
Letter to international standards bodies
In December 1995 COREPER agreed a letter to be sent out to "international standardisation bodies in the field of telecommunications" (IEC, ISO and ITU). The letter said:
"Modern telecommunications systems present the risk of not permitting the lawful interception of telecommunications if they have not been adapted, at the standardisation and design stage, to allow such interception."
These bodies are "invited" to take account of the requirements of the Council Resolution of 17 January 1995 and told that Member States would be applying "these requirements to network operators and providers of services".
The December 1995 letter to international standards bodies and the publication of the main Resolution in November 1996 in the Official Journal announced to manufacturers of equipment and service providers that they will be expected to meet the "Requirements" allowing surveillance for any new contracts within the EU and via the "Memorandum" that these standards would also apply to any countries signing up to it - for example, the USA.
Source: "Draft letter to be sent to the international standardisation bodies concerning the Council Resolution of 17 January 1995 on the lawful interception of communications", Council General Secretariat to COREPER/COUNCIL, ENFOPOL 166, 12798/95, Limite, 14.12.95.
Letter to non EU countries
At it meeting on 28-29 November 1996 the Council of Justice and Home Affairs Ministers agreed a "draft letter" prepared by the K4 Committee to "non EU participants in the informal international Law Enforcement Telecommunications Seminar".
"The letter.. informs you of the wider international support for the "Requirements" annexed to the Council Resolution.
The Council considers that the lawful monitoring of telecommunications systems is an important tool in the prevention and detection of serious crimes and in safeguarding national security. Mindful of new technological developments in the field of telecommunications, the Council adopted the Resolution of 17 January, 1996 laying down technical Requirements, for the lawful interception of telecommunications. The Member States of the European Union have been called upon to apply those Requirements to telecommunications operators and service providers...
The "Requirements" have been discussed by interception experts from EU Member States with colleagues from other countries which are equally concerned to ensure that adequate technical provision is made for legally authorized interception in modern telecommunications technologies. Arising from those discussions which have taken place during a seminar, the Council of the European Union has received expressions of support for the Requirements from Australia, Canada, Norway and the United States of America. In particular, the relevant authorities In those countries have undertaken to (i) have the Requirements taken into account in their appropriate national policies and (ii) use the Requirements as a basis for discussions with the telecommunications industry, standards bodies and telecommunications operators...
You are invited to take note of this letter for the purpose of your further discussions with the telecommunications industry standards bodies and telecommunications operators.
The President, for the Council of the European Union."
Source: "Draft letter to non EU participants in the informal international Law Enforcement Telecommunications Seminar regarding the Council Resolution", ENFOPOL 180, 11282/96, Limite 6.11.96.
Behind the scenes
Behind the formal decisions and letters the various Working Parties under the K4 Committee were at work on the details.
In January 1995 the Police Cooperation Working Group, which comes under the K4 Committee, considered a report by the UK delegation on the problems presented by the next generation of satellite-based telecommunications systems which should be able to:
" "tag" each individual subscriber in view of a possibly necessary surveillance activity."
The report said that the new mobile individual communications working through satellites were already underway and unlike the current earth-bound systems based on GSM-technology would "in many cases operate from outside the national territory".
The rationale for the plan was that these new systems:
"will provide unique possibilities for organised crime and will lead to new threats to national security".
The report said all the new systems have to have the capability to place all individuals under surveillance - the product of "tagging" individual phone lines could therefore easily be extended to political activists, "suspected" illegal migrants and others.
The fact that the new systems were being developed by large private international corporations, not national state-run systems, created "unusual problems for the legally permitted surveillance of telecommunications". The first problem to surface, according to the report, was that:
"initial contacts with various consortia... has met with the most diverse reactions, ranging from great willingness to cooperate on the one hand, to an almost total refusal even to discuss the question."
It goes on to say:
"it is very urgent for governments and/or legislative institutions to make the new consortia aware of their duties. The government will also have to create new regulations for international cooperation so that the necessary surveillance will be able to operate."
Another "problem" for surveillance under the new systems is that satellites will communicate with earth-bound stations which will function as distribution points for a number of adjoining countries - there will not be a distribution point in every country. While the existing "methods of legally permitted surveillance of immobile and mobile telecommunications have hitherto depended on national infrastructures" (italics added). The:
"providers of these new systems do not come under the legal guidelines used hitherto for a legal surveillance of telecommunications."
The report says it would be difficult to monitor the "upward and downward connections to the distribution point" so the "tag" would start the surveillance at "the first earthbound distribution point".
Due to the number of different countries that might be involved in making a connection it has been agreed that the following "relevant data" should be provided: "the number of the subscriber calling, the number of the subscriber being called, the numbers of all subscribers called thereafter". The report uses the example of a subscriber who is a national of country A, with a telephone subscription in country B (supplying the relevant data for the "tag"), who occasionally uses the system in country C which uses the distribution point in country D (which conducts the surveillance) and who is in contact with a person in country E concerning a suspected serious crime in country F.
The report with a series of recommendations including amendments to national laws to "ensure that surveillance will be possible within the new systems" and that "all those who are involved in planning the new systems" should be made aware of "the demands of legally permitted surveillance".
A later report from the same Working Party, in June 1995, concludes:
"These new telecommunications systems have much in common with existing mobile phone systems... [and] will very quickly develop into a global problem, which looks like it can only be controlled by global cooperation of a hitherto unknown degree."
Sources: "Legally permitted surveillance of telecommunications systems provided from a point outside the national territory", report from the UK delegation to the Working Group on Police Cooperation, ENFOPOL 1, 4118/95, Restricted, 9.1.95; Report from the Presidency to the Working Group on Police Cooperation, ENFOPOL 1, 4118/2/95 REV 2, Limite, 2.6.95.
Questionnaire on "national law regarding phone tapping"
In November 1995 while the EU Ministers were signing the "Memorandum of Understanding" for non-EU countries a Working Party under the K4 Committee was considering a report from the Spanish delegation on national laws within the EU on phone tapping surveillance.
The 1995 report opens with the cynical observation:
"As it was foreseeable, all states which have answered the questionnaire guarantee the confidentiality of private communications either by their constitution or their Basic Law, or both, in accordance with Article 8 of the European Convention on Human Rights."
However, it goes on to observe, and assume, "under certain conditions the interception of telecommunications" is allowed.
The report says the country surveys showed - and this is of crucial importance regarding surveillance by ECHELON (see below) that:
"At the moment there does not seem to be a legal problem for interception that depends on the kind of device used for the transmission of voice, text, data or images"
This is a reference to forms of "written" communications or "images" sent by e-mail, fax, and telex.
It summarises the legal positions as: the following countries "can simply" make changes in the penal procedure: Germany, Austria, Denmark, Luxembourg, Spain and Portugal, while Belgium, France, the UK, Ireland, Greece, Norway and Sweden require new legislation, with a combination of both in Italy.
Discussions had taken place, the report says, on the "great advantages" the police have if: "they can keep people under surveillance on the grounds of suspicion of criminal activity". Some countries require objective evidence of an offence before surveillance can start but in Austria a request for a phone tap "leads automatically to an investigation being opened".
Another problem addressed was the right of individual's to be informed about phone tapping (Article 6.3 in relation to Article 8 of the ECHR):
"Obviously such information prejudices the result of the police investigation. Therefore, each country has to arrange for a procedure to legally delay notification."
The report recommends the Danish system where a lawyer is appointed by the Justice Ministry who represents the interests of the person to be placed under surveillance at a private hearing but is not allowed to tell the person concerned.
The survey found that the maximum duration of authorisation varied from 2 weeks to 4 months.
The report concludes that phone tapping "is justified by a serious offence" where "a punishment of imprisonment of one year or more" is available to fight "organised crime". Yet again the justification for combating "organised crime" is so widely drawn - sentences of just one year or more - that the purpose of surveillance has to be fundamentally questioned.
Source: "Report on the national laws regarding the questionnaires on phone tapping", Report from the Spanish Presidency to the Working Group on Police Cooperation, ENFOPOL 15, 4354/2/95 REV 2, Restricted, 13.11.95.
Who is going to pay for it?
One issue on which the reports from the K4 Committee are silent is who is to pay the costs for the special facilities needed under the "Requirements" of law enforcement agencies - network and service providers or the governments?
However, a report produced by the German government, says that the costs are going to be astronomical. It estimates that to set up surveillance of mobile phones alone will cost 4 billion D-Marks.
Source: draft report, dated 5 May 1995, from the German government on the "problems and solutions regarding the surveillance of telecommunications".
The "ECHELON" connection
"ECHELON" is a world-wide surveillance system designed and coordinated by the US NSA (National Security Agency) that intercepts e-mail, fax, telex and international telephone communications carried via satellites and has been operating since the early 1980s - it is part of the post Cold War developments based on the UKUSA agreement signed between the UK, USA, Canada, Australia and New Zealand in 1948.
The five agencies involved are: the US National Security Agency (NSA), the Government Communications Security Bureau (GCSB) in New Zealand, Government Communications Headquarters (GCHQ) in the UK, the Communications Security Establishment (CSE) in Canada and the Defence Signals Directorate (DSD) in Australia.
The system has been exposed by Nicky Hager in his 1996 book, Secret Power: New Zealand's role in the International Spy Network. He interviewed more than 50 people who work or have worked in intelligence who are concerned at the uses of ECHELON.
"The ECHELON system is not designed to eavesdrop on a particular individual's e-mail or fax link. Rather, the system works by indiscriminately intercepting very large quantities of communications and using computers to identify and extract messages from the mass of unwanted ones."
There are three components to ECHELON:
1) The monitoring of Intelsats, international telecommunications satellites used by phone companies in most countries. A key ECHELON station is at Morwenstow in Cornwall monitoring Europe, the Atlantic and the Indian Ocean.
2) ECHELON interception of non-Intelsat regional communication satellites. Key monitoring stations are Menwith Hill in Yorkshire and Bad Aibling in Germany.
3) The final element of the ECHELON system is the surveillance of land-based or under-sea systems which use cables or microwave tower networks.
At present it is thought ECHELON's effort is primarily directed at the "written form" (e-mails, faxes, and telexes) but new satellite telephones system which take over from old land-based ones will be as vulnerable as the "written word".
Each of the five centres supply "Dictionaries" to the other four of keywords, phrases, people and places to "tag" and the tagged intercept is forwarded straight to the requesting country.
It is the interface of the ECHELON system and its potential development on phone calls combined with the standardisation of "tappable" telecommunications centres and equipment being sponsored by the EU and the USA which presents a truly global threat over which there are no legal or democratic controls.
Source: "Exposing the global surveillance system", Nicky Hager. CovertAction Quarterly, Winter 1996-97, pages 11-17.
A meeting of the Trevi Ministers decide a study should be carried out on the new telecommunications systems and "the different interception possibilities".
29-30 November 1993
The first meeting of the new, post-Maastricht, Council of Justice and Home Affairs Ministers meeting in Brussels adopt a Resolution calling on experts to compare the needs of the EU "with those of the FBI".
March, April, November and December 1994
The K4 Committee discusses the draft Resolution on the lawful interception of telecommunications and the "Requirements" to be placed on network and service providers.
The Council of Justice and Home Affairs Ministers discuss the draft Resolution.
The K4 Committee discusses the draft "Memorandum of Understanding with third countries".
9 January 1995
The Working Group on Police Cooperation, under the K4 Committee, considers a report on the need to "tag" all communications.
17 January 1995
The Resolution is adopted by "written procedure". It is not published in any form until 4 November 1996 when it appears in the Official Journal.
13 November 1995
The Working Group on Police Cooperation consider a report on the situation in each EU state on telephone tapping.
23 November 1995
The Council of Justice and Home Affairs Ministers agree the "Memorandum of Understanding". It is not published in any form.
COREPER agree the text of a letter to be sent to international standards bodies attaching the Resolution.
7 May 1996
Michael Howard, the Home Secretary, tells the Chair of the Select Committee on the European Communities in the House of Lords that the "Memorandum of Understanding on the legal interception of communications" is "not a significant document".
28 November 1996
The Council of Justice and Home Affairs Ministers agree the text of a letter to be sent out to other potential "participants" (countries) in the "Memorandum of Understanding".
Council of Justice and Home Affairs Ministers
Set up under Title VI, Article K, of the Maastricht Treaty. First meet on 29 November 1993 when it took over from the Trevi Group and the Ad Hoc Group on Immigration.
Also set up under the Maastricht Treaty to coordinate the work on the "third pillar" - policing, immigration and asylum, and legal cooperation. Is comprised of senior officials from Interior Ministries and prepares report 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.
The Committee of Permanent Representatives from each EU state based in Brussels.
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