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Memorandum on the draft Convention on Mutual Assistance in criminal matters

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25 November 1997

Memorandum by Statewatch to sub-committee "E" of the House of Lords Select Committee on the European Communities's inquiry into "Mutual assistance in criminal matters" (consideration of the draft Convention on Mutual Assistance in criminal matters)

INTRODUCTION

This evidence solely concerns Articles 6-9 of the Draft Convention which cover the interception of telecommunications, and gives background information on these Articles which may be of interest to the Committee.

Since the early 1990s it became clear that a new generation of telecommunications was on the horizon. The current system which carries telephone conversations, faxes and e-mails via land and sea lines and microwave towers run by national telecommunications companies was to be replaced by satellite-based telecommunications. It emerged that the new global telecommunications satellite systems are to be run by four major conglomerates - Iridium, Globalstar, Odyssey and ICO - who will direct traffic to "ground stations" which in turn would be used by service providers. In place of 15 state-owned, nationally-based, telecommunications companies in the EU it is expected there will only be three or four "ground stations". These "ground stations" will be in France and Italy, and possibly Finland, Germany and the UK.

The European Commission has been working since the beginning of the 1990s with European and international companies and organisations in order to introduce standards for commercial purposes. An added factor which also had to be incorporated is the massive growth in the use of mobile phones.

In the USA the FBI was aware that the new system could create problems for law enforcement agencies. In 1991 it put forward its first proposal that service providers (the companies offering services to the public and companies) should be obliged to provide access to telecommunications. Moreover, as this access had to be both "real time" (as a communication is happening) as well as off-line transcription, "Requirements" are to be placed on service providers which have major implications for the design and construction of the new systems. The 1991 FBI proposal was withdrawn but an amended proposal was passed into US law in October 1994.

The EU was slow off the mark. It was not until 1994 that the issue of providing access for law enforcement agencies to place telecommunications under surveillance was seriously addressed. In April, November and December 1994 the K4 Committee discussed a draft Resolution on the lawful interception of telecommunications directly based on the "Requirements" drawn up by the FBI. The Working Party on Police Cooperation (Interception) was not set up until 1 September 1994. In November 1994_a month after the US put the "Requirements" into law_the K4 Committee discussed a draft "Memorandum of Understanding with third countries" to extend adherence to the "Requirements" outside the EU the draft gave the addresses of the European Council in Brussels and the FBI in Washington as contact points for interested countries.

The Committee may remember that this "Memorandum of Understanding" was the subject of some interest last year when the previous home Secretary, Michael Howard, informed your Committee that it was "not a significant document".

On 17 January 1995 the Resolution on the "Requirements" was adopted by written procedure (it was never discussed at the Council of Justice and Home Affairs Ministers). Not until 4 November 1996 was the "Requirements" Resolution published in the Official Journal.

The "Requirements" have been formally adopted by the USA (legislation), the 15 EU Member States (the "Resolution" and the "Memorandum") and Norway (by signing the "Memorandum"), Australia is currently adopting legislation.

In November 1995 a "Memorandum of Understanding concerning the lawful interception of telecommunications" was adopted by the Council of Justice and Home Affairs Ministers. This Memorandum, which has the "Requirements" attached to it, invited non-EU states to adopt the same standards. The Memorandum was signed by the 15 EU Member States and by Norway. The USA, Australia, Canada and Hong Kong have not signed the Memorandum but have endorsed it. Although the latter countries have not formally signed the Memorandum three of them - Australia, Canada and the USA - had by November 1996:

"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" (ENFOPOL 180, 112/96, 6 November 1996. "Draft letter to non EU participants in the informal international Law Enforcement Telecommunications Seminar regarding the Council Resolution").

Thus by November 1996 the EU had in place the "Requirements" (to be adopted by service providers) and the "Memorandum of Understanding" with third countries.

What was not in place was a legal basis allowing law enforcement agencies (police, immigration, customs, and internal security agencies) to place interception orders on private sector companies providing telecommunications services to business, organisations and citizens. This was quite surprising as the Council of Europe Committee of Ministers had adopted a directly relevant and far-reaching Recommendation (no.R(95)13) "Concerning Problems of Criminal Procedure Law Connected with Information Technology" on 11 September 1995.

A quite separate initiative was already underway under the rubric of the JHA Council. The Working Party on Mutual Assistance in Criminal Matters was working on a draft EU Convention to update the Council of Europe Convention on mutua] assistance in criminal matters of 1959. The draft drawn up by the Working Party, dated 15 July 1996, contained no mention of the "Investigation of telecommunications".

But at the Dublin EU Council in December 1996 a "High Level" group of experts was set up to report on tackling organised crime. It was their report, the Action plan on organised crime, adopted by the JHA Council at a special meeting in April 1997 which gave the impetus to introduce changes to the draft Convention on mutual assistance in criminal matters.

In April 1997 the EU Presidency presented a report to the K4 Committee which said there was a need to "provide a legal basis for co-operation between the Member States" on the interception of telecommunications and the "real time monitoring of satellite telecommunications". The need to provide a legal basis for the interception of telecommunications was reiterated in the Presidency's explanatory comment in the May 1997 draft of the Convention - which now included Articles 6-9 on the interception of telecommunications.

A reliable source has informed us that work on the "Memorandum", involving twenty countries (as above), is being pursued "outside" the formal structure of the JHA Council.

This background information is intended to show the link between the common "Requirements" (adopted by the US and the EU), the "Memorandum of Understanding" (put forward by the US and the EU) and the need to provide a legal basis in the EU for both in the draft Convention.

Articles 6-9

Explanatory comments refer to the May 1997 draft of the Convention.

Article 6.2 says that an "order" from a competent authority of the "requesting Member State" can ask for either:

"The interception, recording and transcription of intercepted correspondence or for interception and direct transmission of intercepted correspondence to the requesting Member State for monitoring and for recording and transcription there."

"In plain language the results of an interception are either sent ex-post by the "requested" member state after the event to the requesting member state or, if the member state asks the interception is transmitted, real time (as it is happening) to the "requesting" member state. The term "correspondence" is taken from Article 8 of the European Convention on Human Rights and taken to encompass "both conversations and fax messages etc.".

Article 6.3 covers the surveillance of mobile phones and messages in another member state or member states (or another state which is party to the agreement). Article 6.4 sets out that requests between member states should include: "as accurate a description as possible of the subject of the investigation . . . "; "the desired duration of the investigation" and the "type of investigation" (as in Article 6.2 above).

Article 6.5 is intended to exclude, according to the explanatory comment, the use of information derived "between doctor and patient or client and lawyer and correspondence with religious advisers".

Articles 7 and 8 deal respectively with :"Investigation of terrestrial communications" and "Investigation of satellite communications". Article 9 is currently blank to provide for additional provisions concerning third member states (in addition to the "requesting" and "requested" member states). Article 7.2 would allow the "requested" member state to refuse to execute the request "in view of the nature or non-seriousness of the offence or the personal status of the subject of the investigation" or if it considered the request was "unjustified given the circumstances of the case".

Article 7.3.a and b say that the "requested" Member State "may" set conditions that i) prior to the transfer of the data it would "destroy.. those parts of the correspondence which.. cannot be meaningful in the context.." or ii) the "requesting" member state which receives the data "real time" would do the same. The first condition 7.3.a cannot be imposed where the "requesting" member state has asked for interception and transmission (real time). Each member state would operate according to its national law - which may of course be different.

Articles 7.3.c and d say that the "requested" and "requesting" member states shall:

"inform the holder of the network connection number and the subject of the investigation.. that the investigation has been carried out."

There is of course, a catch to this provision: "in accordance with those authorities' national law". In the UK, for example, this would never happen (except perhaps where it had to be revealed in court).

Article 8 is almost exactly the same as Article 7 but the explanatory comments regarding satellite telecommunications shows the influence of the report of the High Level Group on Organised Crime. The request for "assistance" is to be made to the member state in which the "ground station" is located_the "ground station" could be located in member state A while the subject may be in member state B. The explanatory comment says that "additional information on the aim of and reasons for the request" cannot be asked for by the "requested" member state when it is for a "real time" interception.

CONCLUSION

Although the impetus for the inclusion of the new Articles on the "Investigation of telecommunications" came from the High Level Group's Action Plan on organised crime the scope of draft Convention is not limited to "organised crime" or even "serious crime". It simply concerns mutual assistance between EU Member States where a punishable offence occurs however minor.

In April 1997 the EU Presidency presented a report to the K4 Committee summarising the proposed changes to the new Convention. The report says that there is a need to "provide a legal basis for the co-operation between the Member States" on the interception of telecommunications and the "real time monitoring of satellite telecommunications".

The rights of the individual are referred to as covered by Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 guarantees the right to respect for private life and correspondence. The "problem" for EU policymakers is that:

"Traditionally persons located on the territory of a certain state, fall under its jurisdiction. Their freedoms . . . are guaranteed under the law of that state. Likewise the infringements on this freedom should be allowed by the laws of that same state. The location of a target is therefore relevant. Exceptions of the principle of sovereignty can only be regulated by a Convention." (Hague meeting 25-26 November 1996.)

These "freedoms" are, by way of this new Convention, being substantially eroded and the European and national parliaments have no powers to change or amend any of its provisions.