On February 6, the parliamentary majority initiated a legislative package that regulates the conduct of covert investigative actions in a new way. The legislative package provides for the creation of a legal entity of public law, Operative-Technical Agency of Georgia, which will be responsible for covert surveillance and eavesdropping. Together with technical implementation of eavesdropping, the agency will have a number of other functions, which makes it an interested entity in obtaining as much information as possible. The agency will also be granted the powers to exercise control on electronic communications companies. Therefore, instead of an independent structure, the legislative package provides for the creation of a unit of the State Security Service with even more powers and a risk of abusing these powers.
Below we give a list of the main risks and shortcomings related to the legislative package:
1. The legislative package contradicts a judgment of the Constitutional Court – A structural unit (a legal entity of public law, according to the legislative package) that carries out covert investigative actions still remains a part of the State Security Service. In addition to technical implementation of eavesdropping, the agency will fulfill a number of important functions for whose effective implementation it will be interested in obtaining as much information as possible. Such functions include, for example, ensuring information security in the area of electronic communications, information/technical support of public agencies and institutions, ensuring nuclear, radiation, chemical and biological security in the territory of the country, etc. According to a judgment of the Constitutional Court, “Creation, possession, and administration of technical means of obtaining personal information in real time and having direct access to personal information using this means, by an agency that has investigative functions or is professionally interested in familiarizing itself with this information, creates an excessive threat of unsubstantiated interference with personal life.”
2. The legislative package fails to provide safeguards for the independence of the new agency – Candidates for the position of its head will be selected by the head of the State Security Service who will submit them to a commission which is headed by himself/herself. The State Security Service will exercise control on the new agency. If the head of the agency fails to fulfill his/her duties properly, the head of the State Service will be able to give the Prime Minister a proposal to dismiss him/her. The deputy heads of the agency will be appointed, and their powers will be determined, by the head of the State Security Service.
3. The number of structural units with eavesdropping powers increases – The agency may also have territorial bodies. Accordingly, instead of the existing reality where only one department of the State Security Service eavesdrops on citizens, it will be possible to create several (unlimited number of) structural units with eavesdropping powers.
4. The powers of the agency carrying out eavesdropping expand – The legislative package introduces new terms, such as “strategic monitoring measure” and “individual monitoring measure”, which imply monitoring of communication transmitted through electronic communication networks abroad and in the territory currently beyond Georgia’s control. In this case, a judge’s order authorizing monitoring of communication of an individual person will not be required.
5. The mechanisms for controlling the agency have a formal character – Apart from the State Security Service, all other mechanisms for controlling the agency will be formal or weak: The mechanism of control by the Personal Data Protection Inspector will be weakened, and he/she will no longer take part in the process of technical initiation of eavesdropping; control by the Prime Minister will be limited to an obligation to report to him/her, and the reports will be first submitted to the head of the State Security Service; parliamentary control will be limited to submitting statistical and activity reports to the Group of Trust.
6. The agency’s interference with the activity of private companies – The agency that is a part of the State Security Service will not only carry out covert investigative and certain operative-investigative actions (e.g. interviewing a person, collecting information, and visual control), but also interfere with the activity of private companies. The agency will be authorized to conduct an infrastructure audit in electronic communications companies, to impose a fine on them (with a maximum fine of GEL 200,000), and to demand suspension of their authorization by the National Communications Commission.
It is also noteworthy to mention that the working group on the draft law had to operate within a very limited time period. Moreover, the non-governmental organizations involved in the working group were provided with the version of the draft law presented by the Parliament only four hours before the final working group meeting. The working group did not take into consideration the opinions of the This Affects You Too campaign on the institutional structure and control mechanisms of the agency. There are significant risks in holding the discussions of draft laws of such scope and high-public interest in such a hasty manner.
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