EU: Surveillance extended to Internet and satellite phones
01 November 1998
The EU is to extend the EU-FBI telecommunications surveillance plan to the Internet and to new generation satellite mobile phones (see Statewatch, vol 7 no 1 & 4 & 5; vol 8 no 5). At the same time EU Interior Ministers are seeking to resolve their differences over the legal powers they intend to give the "law enforcement agencies" to intercept all forms of telecommunications under the new Convention on Mutual Legal Assistance. In the US the same issues are being openly discussed - the Federal Communications Commission has deferred a decision on an FBI proposal to extend surveillance to the Internet.
In October 1994 the US Congress passed an FBI-proposed law, the Communications Assistance for Law Enforcement Act. On 17 January 1995 the EU adopted a Resolution on the "Requirements" to be placed on network and service providers to carry out surveillance of all telecommunications. These "Requirements" were exactly the same as those drafted by the FBI. Now these "Requirements" are to be extended from covering traditional phone networks and GSM mobile phones to the Internet and to the new satellite-based mobile phones run by multinational companies like Iridium.
Under the plan telecommunications network and service providers would have to give access to communications from "mobile satellite services" (provided by multinationals like Iridium via their "ground station" in Italy, see Statewatch, vol 8 no 5) and to e-mail sent and received via ISPs (internet service providers) in addition to phone calls and faxes sent through the traditional system (land and sea lines and microwave towers).
The new draft "Requirements" cover the "realtime" (as it is actually happening) surveillance of phone-calls and e-mails including where messages are redirected, voice-mail and conference calls. They even extend to passing over data when a connection has not been made for both outgoing and incoming calls/messages. All details concerning e-mails accounts have to be handed over by IP providers. "Realtime" is defined as routing the surveillance in "milliseconds".
Legal powers
In a parallel development the EU Justice and Home Affairs Council is discussing the draft Articles on the "interception of telecommunications" in a new Convention on Mutual Legal Assistance in Criminal Matters. This is intended to extend the application of a 1959 Council of Europe Convention with the same title.
The new "Requirements" and the new legal powers are being presented as being necessary to combat organised crime. However, the scope of the 1959 Council of Europe Convention simply covers any:
"offences the punishment of which falls within the competence of the judicial authorities of the requesting Party. Provisions is thus made for minor offences as well as for other, serious, offences.." (Explanatory report on the European Convention on mutual assistance in criminal matters, Council of Europe, 1969, p11)
The issue of police officers and/or judicial authorities being called on to give what will in effect be instantaneous authorisations for intercepts "within minutes" is not addressed by the draft EU Convention.
Nor is the issue of telecommunications surveillance by the security and intelligence services - the new legal powers are only intended to authorise interception for criminal investigations. To the embarrassment of EU Interior Ministers the UK has objected to the draft Convention because in the UK - unlike in other member states - there is a single law covering the Security Service's (MI5) surveillance in connection with national security and its role assisting the police on organised crime.
Neither the first set of "Requirements" not the proposed revised set of "Requirements" require approval or reference to parliaments, national or European. The new draft Convention, when eventually signed by the 15 EU member states has to be ratified by national parliaments - but they are not allowed to change or amend anything,