Enfopol plans integrated into European legal aid agreement

By Christiane Schulzki Haddouti

General long distance surveillance?

For months nothing was heard of Enfopol plans. The European federation lobby for EuroISPA providers saw itself already on the winning side: It had not accepted plans for transnational surveillance and assumed they would not be pursued. However a June 28 draft of a comprehensive European legal aid convention reveals there remains surveillance capability by satellite communication despite the failure of the Iridium system. There is still no decree in the country in which rights of the Iridium ground stations are in dispute -- which for Europe means Italy.

Within Article 11b of the legal aid convention is stipulated "remote access" of national monitoring measures becomes "regarding telecommunications connections on a state's own territory under engagement of national service tenderers by means of remote control in another member state which has the appropriate ground station". But none of its own rogatory letters are necessary for the member state with the ground station. A condition is that all telecommunication service offerers make "possible the execution of national monitoring arrangements". Exactly as the Enfopol plans had required. Now they are integrated into the European Union legal aid convention.

Italy wanted to allow the remote access only under the condition that the national monitoring measures of other member states do not violate the principles of Italian law. However, after intensive consultation most other member states rejected this. Whereupon Italy succumbed to pressure after June 10. It went on the counteroffensive by submitting a new suggestion: It proposed that telecommunications operators should be obligated to other European service tenderers for "makin directly accessible the monitoring mechanisms of telecommunications traffic". Thus would be the general long distance surveillance permitted -- independent of the underlying technology.

The Italian suggestion was defused however however in a further round of negotiations, since the member states feared, a guaranteed "remote access" could "subsequent problems with the release of surveillance data. The "obligation" was replaced by therefore it by a "authorization" in the document of COPEN 6. Under the Finnish presidency the EU wants to consult over it still further.

Transnational co-operation

In Article 12 of the legal aid convention it is stipulated that another member state can be obligated to make a technical monitoring of telecommunications traffic "in real time" or deliver monitoring recordings already existing. If the log files of a Internet Providers were stored, they can be delivered according to Article 12. If a country does not need the technical support of this for monitoring in another country, then that is also to be possible under certain conditions.

This request can be rejected however, if the measures "contradict lawful order" and "if the monitoring had been inadmissible by national law of the requester. If evidencxe was obtained in such a contradiction itmay not be used in criminal procedures. Sweden does not yet agreewith this regulation -- for there this principle contradicts the free judicial proof appreciation in accordance with Swedish law of criminal procedure. France submitted a new suggestion, which proposes together with Sweden that the monitoring measure may not be accomplished if the country of residence is silent still on the fourth day of its request. Positions are being clarified now.

At the Expense of the Provider

In Article 14 the question of the costs of interception and surveillance are finally explained. Thus the requesting national member bears the cost of supervision of the operator, but not however the capital outlays, which the operator must exend, in order to make the monitoring technically possible. However this question is not yet quiet clarified. According to "opinion of the representative of the commission" this question is to be addressed in "a suitable committee".

Special Role for Great Britain

It is unclear whether and agreement with Great Britain can be obtained. There the Secretary of State in the Home Office issues the monitoring order -- in the interest of national security or the prevention or prosecution of crime. It is activated if the British secret services or police and customs authorities bring in an appropriate request. A clear separation between hearing measures from prosecution authorities on the one hand and secret services on the other hand does not therefore work well in Great Britain. Besides the secret services have supported the police authorities with the investigation of serious criminal offences since 1996. However the hearing material may be used not as evidence in criminal procedures, but in only for investigative purposes.

Great Britain wanted to exclude therefore the hearing arrangements which were issued upon the request of the secret services completely from the agreement for the measures requested by prosecution authorities initiated in the interest of national security. That was not however acceptable for the other states. After intensive bilateral consultation in the committee of the Permanent Representatives, on the European Union Council conference on May 27 and 28 as well as during a special meeting articles 36-Ausschusses on June 10. In June however came some movement into the hard British position, reports the Federal Department of Justice. In June officials agreed on a compromise which permits an inclusion of the hearing measures which were made solely due to criminal determinations.

Schedule

In the Enfopol plans it concerned in principle always transnational surveillance of communication -- no matter by which technical means it is conveyed. While the work group tried itself "police co-operation (Enfopol)" it became necessary for a uniform hearing terminology to be reasonable, the lawyers in the working group "Justpen" prepared the legal conditions. The legal aid agreement among other things prepared by them shows clearly that in the objective nothing changed. Nevertheless safeguard mechanisms were inserted in order to prevent a nationa power violations. Surveillance can be done only on the basis of national powers in each case - excluded however is that main line train reef on the ground stations of satellite communication systems such as Iridium after current conditions.

When the convention is to be adopted is still uncertain. Due to a proposed amendment in 1998 by the Netherlands the Federal Government had inserted one to today to not waive parliamentary reservation to the monitoring regulations. The political meaning was classified however by the Federal Department of Justice as "urgent" Up to now these were not yet addressed in the Bundestag. Also a statement of the Upper House of Parliament is still pending. Before the acceptance of the convention by the Council it must be considered by the European Parliament.

In the Council however discusses continue on legal regulations for data security. Germany and Belgium insist on an agreement of legal regulations for data security. But they encounter reistance from the other member states. They hold the view that the regulations at the national level are sufficient also for the transmission of personal data in the context of the legal aid agreement.

__________

Last modified: 08.11.1999