Reportedly, the Constitutional Court declared the acting legislation unconstitutional, which regulates secret surveillance and listening. In its decision, the Court stated that creation, possession, administration and use of technical tools for the obtaining of the personal data in real time and ability to have direct access to the personal data with the support of these tools, also copying and retaining metadata by the very same agency, which itself is carrying out investigation increases threat of unreasonable interference in personal life. The Court set Marcy 31, 2017 as deadline for the Parliament of Georgia to make the compliant with the Constitution.
In January 2017, a working group was set up in the Parliament of Georgia, where representatives of the organizations participating in the campaign This Affects You also participated. On January 29, the ruling party presented its draft law to the working group, according to which a new agency under the State Security Service, will be entitled to monitor telephone and internet communications, as well as conducting the video and audio surveillance. The proposed model clearly contradicts the aforementioned decision of the Constitutional Court and creates threats of ungrounded infringement of human rights. Among several critical issues, we may underline several fundamental problems:
Independence of the Agency – as it was noted the agency will be created under the State Security Service and its head will be appointed/dismissed by the head of the State Security Service. The latter approves the internal regulating acts and implements direct control on the agency;
Competence of the Agency – in accordance to the draft law, the agency will have unbalanced huge competence. It will create, use and control all program and technical tools necessary for its operation; imposes concrete obligations on private providers, can send audit to private companies and if violation is observed, fine them. At the same time, the Agency technically implements secret surveillance or processes the identity data of electronic communications and implements operative-investigative activities like secret audio-video recording and more. Consequently, the Agency will not a service-providing agency but a service with huge authority and power, which will have exclusive rights and have direct access to personal data of citizens that clearly contradicts the decision of the Constitutional Court of Georgia.
Control mechanism of the service – according to the proposed draft law, several entities will have authority to control the agency but none of them is effective enough to control such influential service. As it was noted, on the one hand the Agency carries out operative activities and on the other hand creates, purchases and protects necessary program or technical equipment. At the same time, it controls the private entities and can impose concrete sanctions on them. Such a huge authority cannot be balanced by the control mechanisms proposed in the draft law, including the amended mandate of the trust group.
Campaign This Affects You believes if this model is approved, the Parliament of Georgia will neglect the decision of the Constitutional Court of Georgia that is violation of the constitutional order in the country and contradicts the principle of the Rule of Law. The Campaign calls on the legislative body to respect the decision of the Constitutional Court, the Constitution of Georgia and constitutional order of the country, which guarantees security and defense of human rights in the country.
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