29 May 2000. Thanks to CSH.
Telepolis, 26 May 2000
Christiane Schulzki Haddouti
The legal and interior advisory of the European Commission may adopt at its next meeting in Brussels on May 29 and 30 the draft legal aid agreement of the 15 members. After providing information requested by the Green Party member of the German Parliament, Christian Stroebele, he concurs that the Federal Government should sign the agreement. On May 19 the legal committee of the German Parliament, at the urging of the Justice Ministry, approved the agreement, despite the reservation of the SPD about the regulations for intercepting telecommuncations traffic.
The agreement, the version of 15 May (COPEN 32), which Telepolis now has, sets out in articles 17 to 22 regulations for transnational communication control. Under these provisions the member states can ask another state to carry out in its own interest interception as specified in article 18. It is irritating that this version was also classified like all those preceding as "restricted" secret material.
The authority of the requesting state must be indicated in the request provided. In addition there must be a confirmation, "that a legal monitoring arrangement in connection with a criminal determination is involved." Finally the request must "contain" "for the purpose of the identification of the targeted person", the "criminal charge," the "desired duration of the surveillance" as well as possibly other "sufficient technical data, in particular the primary connection number, and data in order to assure precise correspondence with the the request." The member state to be subject to interception can require additional information in order to determine whether the interception operation under these conditions would be legal also in its own country.
In article 19 the legal aid agreement regulates the coordination of telecommunication service operations which would be possible only above a certain country, as for example satellite telephony. The requesting states may carry out the interception "without participation of that member state in whose territory the ground station is operating."
Article 20 is the main regulation for interception. It is the the most disputed regulation and was boycotted by many states for a long time (no agreement with European legal aid convention). The concern above all was when and how the investigating member state informs the other member state of the surveillance.
The proposed solution now provides that after initiation of surveillance the affected member state must grant approval or disconnect "immediately or at the latest within 96 hours the interception of the investigating member state." If interception material has been already collected, the affected state can specify under what conditions it may be used. It can also forbid such use completely. The 96-hour-limit can be extended at the most to eight days, "thereby only after necessary domestic legal procedures have been arranged."
So for a long time without approval the interception may be continued but the material already collected may not to be used. This does not apply if the states agreed upon something else or if it concerns the defense against "a direct and serious danger to for public safety."
Generally the affected state can require a short representation of the investigative circumstances and further information so that it can judge whether in a comparable domestic case interception would be approved.
With these regulatory mechanisms the states want to prevent national rights violations. Also the question of cost was regulated: Thus the requesting member state must bear the cost to operators of a telecommunications plant or service tenderers for the transnational interception.
At the desire of Germany an article was inserted for the protection of personal data. Therefore the personal data without special agreement may be used only for judicial and administrative procedures, which are connected directly with the procedure. Likewise they may be used if it concerns repelling a "direct and serious danger for public safety."
The last the veto on March 27 in Luxembourg prevented adoption. Also the delegates of the European parliament had demanded the cancellation of paragraph 18 about "surveillance of persons in the territory of other member states or their technical aid." However in vain.
However the technical interface which is to make remote surveillance possible still remains disputed. Thus the European Institute for Standardisation (ETSI) provided in the past year a first guideline for this procedure (see relevant section for the surveillance standard). It makes access possible for all usable data in telecommunications networks: telephone calls, SMS Messages, cellular phone conversations and even Internet telephony. The SPD representative to the Bundestag, Joerg Tauss, says he fears that the common interface for surveillance will be used not only by criminal investigators, but also by the intelligence agencies and for economic espionage.
The legal aid agreement is a substantial component for future common European prosecution and concomitantly for a politically united Europe. However it has hardly been discussed in open sessions by the European Parliament where the central surveillance paragraph was rejected earlier. Probably, as in Germany, various Parliament reservations are quickly overcome. The planned convention on cyber-criminality will probably add its own measures to the agreement. So far however there has been little public discussion on that convention, which is likewise prepared by specialists of the member states.
Translated by Cryptome.