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2002 01 14* The Parliament Magazine - The fight against terrorism must not serve as a pretence to create a "European" Echelon, by Maurizio Turco*

Last month, the Parliament Magazine published a personal account of the work of the European Parliament's Temporary Committee on the Echelon System. This month MEP Maurizio Turco, a former Member of the Committee responds to that article.

In his article published in issue 129 of the Parliament Magazine, my colleague Jan Wiersma stated that the brutal terrorist attacks against the United States of the 11th of September would have renewed the interest in the result of the Echelon committee's work, whose conclusions according to him were both revealing and clear.

First of all, regarding the resolution adopted by our Committee and successively by the Parliament, I would like to point out that although the likely existence of an Anglo-American system for the systematic and generalised interception of communications using search engines has been demonstrated, no reference was made to the fact that this technological capacity is certainly being used by Germany and the Netherlands.

As far as Germany is concerned, this omission is quite curious given the fact that in his explanatory statement the rapporteur Gerhard Schmid himself gave a detailed description of the activity of Germans secret services in relation to international communications interception.

The system used by the German Federal Intelligence Service (FIS) to intercept foreign communications transmitted by satellite (automatic analysis of randomly intercepted communications through the use of search terms authorised in advance by the so-called G10 Committee) is similar to the technical features of the so called Echelon System - even if its capacity for analysis is surely more limited. Although this system has a legal basis the question of its compatibility with the principle of proportionate interference sanctioned by the European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR) should be raised. In fact, before being searched and filtered, satellite communications are submitted to random and a priori interference. Moreover, according to the law, only connections used by foreign nationals or foreign firms abroad can be treated. This discriminatory provision on the protection of privacy means that the citizen of another Member State other than Germany is exposed to the intrusive activities of German secret services. Of course, Germany is not the only country to do so. Common sense dictates that secret services are intercepting communications from abroad, often without authorisation and on the grounds of national security, and some Member States will be intercepting communications from institutions, citizens or businesses of other Member States.

Regarding the opinion of the colleague Wiersma reflecting the one adopted by the temporary Committee in its final report, the use of encryption technology to protect confidential communication of European citizens and industry against illegal intrusions should be further encouraged. I would not be so confident in this solution because I think empowering encryption capacities will create a kind of vicious circle. In fact, although more powerful encryption methods could help to protect privacy, their introduction will inevitably lead to the appearance of more powerful lawful means of decryption techniques, given the indissoluble link between the development of cryptographic, code-breaking and technical interception systems.

This is why, as stated in my minority opinion annexed to the final report, solutions must be primarily sought in the political field: via legal and parliamentary scrutiny of interception activities and monitoring of the police, security and intelligence services; by preventing the proliferation of control bodies which operate to different data-protection standards and without any genuine democratic and legal scrutiny (as Europol or Enfopol for example); by regulating – on the basis of the highest standard and the case-law of the ECHR – protection of the privacy of European citizens against preventive interference by government authorities and providing all European citizens with the same legal guarantees concerning the protection of privacy and the confidentiality of correspondence.

Finally, according to Mr. Wiersma, the tragic events of the 11th September illustrated the need for an effective system of global interception of telecommunications. Before the terrorist attacks of the 11th September, we used to focus on the dangers and threats of the Echelon and similar systems. After, we should now focus on the necessary improvement of such global interception systems of international communication systems which constitute an important instrument in the fight against international terrorism and crime. In my view, this last conclusion is highly doubtful.

Firstly, according to a lot of specialists and observers, the procedure of global and automatic interceptions filtered through a search engine has proved relatively unsuccessful in connection with international crime as terrorism and drug trafficking.

Secondly, the tragic events of last September do not change the basic principle that any interception of communications represents serious interference with an individual's exercise of the right to privacy. In other words, they must not serve as a pretence to infringe fundamental freedoms and rights. The article 8 of the ECHR, which guarantees respect for private life, is very clear: it is not enough that the interference should merely be useful or desirable to the eye of national security interests, interference undertaken by the state must above all be a necessary, appropriate, proportionate and limited in time measure within a democratic society.

To be clear, under the European Convention on Human Rights and pursuant to rulings issued by the Court of Human Rights, any form of wide-scale general or exploratory electronic surveillance - even if considered desirable by some - is prohibited. The current call for an increased cooperation between the European Intelligence agencies in order to fight terrorism should not be blind to this premise.

Maurizio Turco, (TIM/LB) is the President of the Radical MEPs, and former Member of the Temporary Committee on the Echelon System