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).
EU-FBI linkup
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
The Council:
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,
B-1048 Brussels,
Belgium."
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.
