Statement by This Affects You Campaign on Secret Surveillance Regulations

As known, the Constitutional Court has ruled that current legislation regulating secret surveillance and eavesdropping is unconstitutional. The court said in its ruling that creation, possession and administration of technical capabilities (including software) for collection of personal information in real time and the capabilities of direct access to personal information through using these means, as well as copying and saving metadata by an agency performing investigative functions, or being professionally interested in familiarizing itself with this information, creates an increased threat of unjustified interference in private life. The Constitutional Court set March 31, 2017 as the deadline for bringing the above mentioned legislative norms in line with the Constitution.

An ad hoc parliamentary working group was established in January 2017, also involving the organizations that are part of This Affects You campaign. During the yesterday’s meeting of the working group, the ruling party proposed a new agency under the State Security Service – a legal entity of public law, which will be entitled to monitor telephone and internet communications, as well as to conduct video and audio surveillance. The submitted proposal clearly contradicts the above mentioned ruling of the Constitutional Court and creates the risks of unreasonable interference with human rights. Several fundamental problems may be listed among critical issues:

• Agency independence – as already mentioned, the agency should be established under the State Security Service and the issue of appointment/dismissal of its head will be solved by the head of the State Security Service. The latter will also approve the agency’s internal regulations and carry out direct oversight of the agency.
• Agency competence – according to the bill, the agency enjoys unbalanced competencies, as it creates, uses and controls software and technical means necessary for its duties, imposes concrete obligations on private providers, can appoint an audit in private companies and fine them in case of revealing relevant violations. Simultaneously, not only the agency technically carries out secret surveillance and processing of metadata, in a form of services, but it is directly involved in operative-investigative activities such as secret audio-video recording, etc. Thus, the agency will become not a service provider, but the service equipped with huge powers and authorities, which will simultaneously enjoy several exclusive rights and retain the right to have direct access to personal information that clearly contradicts the Constitutional Court ruling.
• Oversight mechanism– the proposed bill imposes various obligations on several subjects to conduct oversight with respect to the agency, but none of them are sufficient for effective supervision of a body, as powerful as the new agency. As already mentioned, the agency, on the one hand, carries out operative activities and on the other, it will create, purchase and protect necessary software or technical equipment. At the same time, it itself controls private subjects and can use specific sanctions against them. Such great power cannot be balanced by oversight mechanisms provided by the bill, including by a modified mandate of the Group of Confidence.

This Affects You campaign supposes that by approving this model, the Parliament of Georgia will neglect the Constitutional Court’s decision that represents a violation of the constitutional order existing in the country and creates a threat to the principle of legal state.

The campaign participants call on the Parliament to respect the Constitutional Court’s decision, the Constitution of Georgia and constitutional order that represents a guarantee for security and human rights in the country.