PEGA-Ausschuss: Wir veröffentlichen das Transkript. Giovanni Sartor sowie Serge Lasvignes, Vorsitzender des Ausschusses für die Kontrolle der Geheimdienste in Frankreich
Okay. Dear colleagues, if everybody could take their seats, I would like to start the meeting first by wishing everybody in the room and those who are following us online a Happy New Year and welcome to all members and substitute members to the first big committee meeting of 2023. We have interpretation in the following languages today: German, English, French, Italian, Greek, Spanish, Hungarian, Polish, Slovakian, Slovenian, Bulgarian and Romanian.
But here we deal with a different case, a different kind of surveillance, which is directed against the targeted individuals. And targeted surveillance may seem to present a minor risk since it is directed against the specific individual because of reasons concerning them. But it also allows for abuses and may have a great impact on society as a whole.
And thanks to the inquiry developed by the Pega committee, we know that there are 22 users. There have been 22 users of Pegasus in 14 member states. We also know that in the US NSO, the company producing Pegasus, has been blacklisted, that you cannot have a contact with the US agencies or also companies. And there are litigation spending cases started by companies such as Apple and later the producers of Facebook against the NSO. And next slide, please.
Let us go to the next slide when we have a look and a quick look at the UN framework. First, in particular, we have here the International Covenant on Civil and Political Rights, which has been ratified by all Member States.
Let us now focus on the issue of national security. And as we have said, as I said, that the use of spyware for purposes of national security and as this raises an important issue, because the concerning the applicability of EU law and in particular are the fundamental rights included in the charter. This is because on the one hand, a threat to national security may justify the surveillance, but these should only happen according to the principles that are stated in the Charter.
This is the two fundamental instruments are included which are the GDPR and the ePrivacy directive. Obviously, if a state where to order providers or to cooperate with the state authorities in the installation and use of space of spyware, we would consider that in this case there is an interference in the regulation of the activity of the providers that would fall under the data protection law.
And then there is the need the for European authorities, the Parliament, the Commission to support the adoption of adequate framework at the national level, which include a set of principles that I have listed that in these slides, the legality and the regulation by law, legitimate end such as a real and national security, law enforcement, necessity, proportionality, competent authority that adopts the relevant decisions, due process and also public oversight, the security and certification...
But I have two concrete questions. One or three, maybe, two and a half. One is on national security, national security. And it is very problematic because member states themselves define what national security is. So, they could theoretically declare that anything is a matter of national security and place themselves entirely outside the scope of European law.
So, I think that we should be able to, even if you are unable to provide a clear definition of national security, we should be able to determine the certain things are certain inside of it and certain other activities that are certainly outside of it. And when we are outside of the scope of national security, then the activity does not qualify for the legal treatment of national security. And that may be a violation of the fundamental rights and democracy.
So, on the one hand, you may say it is good that because then as we are interested in the terrorist but we also get interested in climate change, because both fall under the umbrella of national security. On the other end, since national security justifies the limitation of human rights. And you might wonder whether we are doing a good service to our community by using this concept in them in such a way. And I do not know really what is the best outcome.
But I think that we have quite a distinction between what is what should have been according to the law and what is likely to take place, given not many political and other legal arrangements that are in place. So, we have to face the fact that that the remedies that should be available may not be available. in particularly setting in certain countries.
And concerning whether I was arguing for different rules for different countries, my proposal. First, I would like to distinguish what is a political or a moral obligation and what is a legal obligation. So, the presumption against spyware and I think would be against all states, unless it is apparent that there is a willingness and a capacity to prevent abuses. If there are abuses in a state, this means that the willingness of the capacity is missing.
Concerning the suggestion of this, the presumption, I think that within the human rights law, it is generally assumed that the state has to show that they are able to respect and protect human rights. So, it would be a kind of presumption that this was illegal.
To this end, it issues, except in cases of absolute urgency, an opinion or any request to implement the technique before the Prime Minister makes a decision. This is the ex-ante control part, and in addition, it controls the execution of the authorisations granted by the Prime Minister and ex-post control. And it can deliberate on any subject falling within its competence, either on its own initiative or at the request of the Prime Minister or Parliament.
Clearly, the intelligence services work serves to preserve public order, to protect us from crime, terrorism and all the legislators job is, is to reconcile those two, the principle of safeguarding privacy and then on the other hand, safeguarding public order. It’s about striking that balance. And once the legislator feels that he’s struck that balance, it’s up to our commission to bring life into that. So, I work on balances. We work on balances.
Not many countries say this, but we say we have 23,000 people under surveillance in France. That’s 23,000 surveillance decisions or authorisations granted by the prime minister. So that’s what I mean by political responsibility. So, it means that if I’m an agent and I say, well, I’m not going to ask anyone, I’ll just ask my director general. Well, really, what’s at stake there is the liability of the prime minister. Side by side with that we’ve got legal control.
And I will add an additional level of security, which is of interest to you and the subject that you’re dealing with. And that is that we are systematically informed of the cost of the material used. So, there’s an administrative commission, an inter-ministerial commission in France, which has the job of granting a label, if you like. Once we want to use surveillance or tapping technology, whether it’s from abroad or not. Any surveillance technology or material needs to be given a label.
Now. The paradox in our system is that we have phone tapping which is centralised in a central unit. We have direct access and it’s subject to a quota obligation. So, they cannot tap more phones than the number stated by the Prime Minister. On the other hand, for I.T. data capturing there’s no centralisation. Each service which has the power to do so, may do so. You would have to go and verify that. And there are no quotas.
You say that each time, let’s say if new technologies are to be employed, they have to receive authorisation. So, my question would be under the current law, would Pegasus, Predator or the surveillance technologies sold by Nexa and Amesys, would they be considered legal at this moment in time? That’s one question.
I think that my case demonstrates very clearly that legal remedy is a joke. It’s a joke because like in the cases of spyware, as we have learned from Poland, Hungary, other cases, Spain, it is the victim or the potential victim who actually has to prove that he has been targeted with spyware or telephone interception or whatever. But he’s not going to get that information from the authorities. So, you get into a vicious circle. Now, as I said, I made my request through CNCTR in May 2016.
Can you tell us about the effectiveness of the different investigation techniques and particularly as we’re talking about spyware and the effectiveness of the follow up based on spy software?Well, that’s quite a challenging question. Obviously, I am not in the business of intelligence. We have oversight functions on intelligence services. What I was saying earlier was that traditional telephone tapping doesn’t really give us much.
So, you said that you don’t use Pegasus in France. Can you explain why not? Other question, you mentioned illegal or unlawful surveillance. How is that possible given all the precautions that you’ve just described? Is there such a thing in France as unlawful or illegal surveillance? Given that you have described a system whereby the president has to sign off decisions, etc.
And then I would like to ask you, in the light of what you have said about the system, whether it is an effective barrier against abuse of spyware, do you think the system works, in other words, and do you think that it could also be an example that other European states could take into consideration? And do you think that it would be appropriate to have minimum standards at a European level with a European wide framework that could be applied to all states? I don’t know if you were here...
And I don’t know whether we need to go any further, to be honest. I think that if every member state complied entirely, which is not the case of France, as I said before, for example, there are a few gaps here and there, but if every member state complied fully with the case law of the court in Strasbourg, that would be a big step forward already. Now, after that, we can try to define European rules.
So, our hesitation is mainly, well, it’s around 13% of all surveillance operations. And out of these 13% of operations, you will have neo-Nazis, you’ll have racists, you’ll have neo-fascist who are armed. And they’re in such cases, it would be difficult to hesitate. There are 3,000 people who are being monitored because of political extremism.
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