Wiretapping and Secrecy: Conclusions and Policy Proposals

When the wiretapping of politicians and journalists was exposed, the issue of the protection of communications’ secrecy was brought to the fore. A protection that applies not only to illegal spyware, but also to legal interceptions. For several weeks, the public debate identified many deficiencies in the existing institutional framework. The government’s decision to introduce new legislation is, to some extent, a confirmation of the objections recorded.

The study by the Lecturer in Law at the University of York, Dimitris Tsarapatsanis, thoroughly analyses both the existing legislative framework for targeted violations of communications secrecy, as well as the new regulations proposed by the government, making the necessary comparisons with France. It also takes a critical look at the ideological context of the scientific and political debate on the issue. Finally, it puts forward nine concrete proposals for institutional changes towards effective privacy protection.

Tsarapatsanis’ study is Eteron’s constructive contribution to the public debate on wiretapping and rights advocacy.

The report’s Executive Summary is also available. 

Conclusions and policy proposals

1. General conclusion.

[After analysing the issue of targeted secrecy lifting for reasons of national security in the preceding study “Wiretapping and secrecy: Institutional framework and policy proposals”, published by Eteron (in Greek)] We are now in a position to move on to specific proposals regarding the regulation of the issue of targeted lifting of the right to secrecy of communications for national security reasons, adapted to the legal framework of the Greek legal order.

The starting point of those proposals is the realisation that, both from the perspective of the valid law as well as from that of the law in force, the present framework constitutes a legal “black hole” dominated by the raison d’État of the state security services, within which there is a risk of state arbitrariness and large-scale violation of individual rights. This framework, in other words, is a setting of absolute exemption from the traditional principles of administrative and public law. This exemption is meant to be justified, to a certain extent, by the very nature of the object in hand, namely the protection of national security. However, as demonstrated earlier, the actual operation and application of this framework is at the very opposite end of traditional administrative law, not merely as a “narrow exception” to the latter, but rather as a zone of unlimited political expediency.

Moreover, it is clear that the framework in question, both in its entirety as well as in its specific provisions, is in direct conflict with the case-law of the ECHR, whose criteria, while granting substantial freedom and discretionary powers to national institutions, nevertheless require the existence of a minimum of judicial control mechanisms.

2. The perspective from which the proposals and critical issues are formulated.

Given that the existing provisions can be interpreted and applied from ideologically distinct perspectives, it is important to be as explicit as possible with regards to the core ideological premise from which the proposals made here originate. Within this context, it is reiterated that the main premise of the proposals developed in the following paragraphs is a liberal and constitutional ideological choice, which generally prioritises the individual right to secrecy of communications over the collective good of national security.

This choice, which is in line with the established case law of the ECHR, has a number of consequences: (a) the clear and restrictive interpretation of the concept of national security as defined in Article 19 of the Constitution; (b) the assertion that the lifting of the secrecy of individuals’ communications is an exception that must be justified by “overriding necessity” and evaluated on the basis of the principle of proportionality, (c) the urgency to seek the most effective institutional safeguards possible, both at the level of the judicial authorities (as formulated in Article 19 of the Constitution) that in principle authorise the lifting of secrecy, as well as at the level of the institutions that are responsible for reviewing ex post the legality and necessity of each case of secrecy lifting, i.e. the Hellenic Authority for Communication Security and Privacy (hereafter “ADAE”) and the Greek Parliament and the clear and restrictive definition of the concept of national security, (d) the general establishment of a framework that is as close as possible to the “standard” guarantees of administrative law, insofar as this can be justified by the nature of the subject of national security, guarantees that include, inter alia, the obligation to provide justification for acts that are detrimental to rights, the obligation to inform the affected person after the measure has ended and the effective – not merely theoretical – possibility of exercising the right to judicial protection against arbitrary acts. The central issues that arise in this context are the following:

• The issue of the definition of the concept of national security.
• The issue of the power to issue orders to lift the secrecy of one’s communications.
• The issue of the justification for said orders to lift the secrecy of one’s communications.
• The issue of specially protected political positions and professional groups.
• The issue of the right of the affected persons to be informed ex post.
• The issue of the effective exercise of the right to judicial protection.
• The issue of the effective control of the security services by ADAE.
• The issue of the effective control of the security services by the Parliament.

With respect to these issues, we will set out (a) the existing framework, (b) the choices made in the draft Bill that was recently submitted for public consultation (hereafter “the Bill”), (c) any proposals made by ADAE and third parties that are of particular interest, and (d) the proposal or proposals (where there are more than one suggested alternatives) that this study makes.

3. The definition of the concept of national security.

The current framework does not define the concept of national security. The Bill provides an extremely broad definition of the concept of national security, which includes reasons related to “[…] the protection of the basic functions of the State and the fundamental interests of society as a whole, and includes the prevention and suppression of activities capable of affecting the constitutional, political, economic or social structures of the country, such as, in particular, reasons related to national defence, foreign policy, energy security, cyber security and protection against other hybrid threats, the protection of the currency and the national economy, protection against humanitarian crisis, public health and protection of the environment”. This definition is, on the one hand, extremely broad and, on the other hand, very verbose. It includes, in addition to the external dimension of national security and that of the protection of democracy (although the latter is not explicitly mentioned), reasons that are formulated at an extremely high level of abstraction (for example, “national economy”, “public health”, “protection of the environment”).

In comparison, the definition contained in Article L811-3 of the French Internal Security Code, although broad, is nevertheless more limited. Practically speaking, it is clear that no legislative definition will make a difference if there are no adequate monitoring bodies and institutional counterweights. In any event, it is advisable that the definition contained in the Bill be replaced by a much narrower one, as follows:

• It is proposed that the only grounds relevant to national security for lifting the secrecy of personal communications, should be: (a) the protection of the territorial integrity and the country’s national defence and (b) the protection of the democratic regime.

4. The power to issue orders to lift the secrecy of one’s communications.

According to the existing framework, this power is vested exclusively in public prosecutors and, in particular, in an appellate prosecutor who is seconded to the National Intelligence Service (hereafter EYP). The Bill’s Article 4, essentially maintains this, while merely adding the requirement to submit the issued order to the Deputy Prosecutor of the Supreme Court. ADAE has made a valid criticism of this provision, suggesting that the power be delegated to a three-judge panel, just as is foreseen for the lifting of the secrecy of communications for the investigation of serious crimes. Other writers who move in a constitutional-liberal direction, such as Giannakopoulos, ¹ suggest that provision be made for this power to be exercised by a specially trained judicial officer, namely the President of the Administrative Court of Appeals, following a duly justified and documented request from the competent authority. In France, the power is vested directly in the Prime Minister, but is exercised after an assessment/ opinion of the National Oversight Commission for Intelligence-Gathering Techniques (CNCTR). Finally, Article 19 paragraph 1 of the Constitution refers to “guarantees of judicial authority”, without further specifying the concept of “judicial authority”. The proposals that can be made in this regard in a liberal and constitutional direction are as follows:

• It is proposed that a request to lift the secrecy of a person’s communications on grounds of national security, which is submitted to a body authorised to decide whether the measure should be taken, should be reasoned and substantiated.
• It is proposed that the decision to lift the secrecy of a person’s communications for reasons of national security should be made by a multi-member body (e.g. a judicial panel, as in the case of lifting the secrecy of communications for the investigation of serious offences), which has a permanent seat and is not seconded to a reviewing authority.

5. The issue of the justification of each order to lift the secrecy of people’s communication for reasons of national security.

In the current context, the prosecutor’s orders don’t have to be accompanied by a justification and the name of the person who will be wiretapped is not mentioned. The Bill does not provide for a change in that regard. ADAE made a valid criticism of this provision from a liberal and constitutional point of view. Giannakopoulos also insists on the need to justify all orders for lifting secrecy. ² The French framework also requires justification of all such actions. The proposal that can be formulated in this respect in a liberal and constitutional direction is as follows:

• It is proposed that any order for lifting the secrecy of a person’s communications on national security grounds should: (a) include the full name of the intercepted person; and (b) be specifically and adequately justified by the requesting authority.

6.The issue of specially protected political positions and/or professional groups.

The current framework does not include any reference to political positions or groups of professionals enjoying special protection. The Bill, in Article 4 paragraph 3, provides for a special procedure for lifting communications’ secrecy for reasons of national security in the case where the person for whom the measure is requested is “[…] the President of the Republic, members of the Government and deputy ministers, MPs and MEPs, heads of political parties represented in the Parliament and the European Parliament and highest tier single-person bodies/ committees of the first and second level local authorities”. In this case, in principle, the President of the Parliament shall decide on the lifting of secrecy. Three out of the five ADAE members, including its chairman, expressed the view that in this case, the authorisation should not be granted by a single-member body (such as the President of the Parliament), but by a body with broader parliamentary representation.

Alternatively, Giannakopoulos suggested that a special group within the Council of State should be responsible for such waivers. ³ Venizelos, on the other hand, is of the opinion that, especially for MPs and MEPs, the guarantees of Articles 61, 62 and 86 of the Constitution, and, for the President of the Republic, Article 49 of the Constitution, must be taken into account. Based on his systematic interpretation, he considers that the only constitutionally consistent lifting of the secrecy of the communications of an MP or MEP for reasons of national security, is one that the Parliament consents to. In France, the relevant specially protected categories include – in addition to MPs and senators- judges, lawyers and journalists. Moreover, a specific procedure is required for the granting of any such authorisation, and their independent supervisory authority is actively involved and informed of the development of each individual case after the granting of each such order, in addition to having access to all the information content that is collected. The proposal that can be formulated in this respect from a constitutional point of view includes two aspects: (a) a broadening of the specially protected categories for reasons already mentioned (and which derive from the case law of the ECHR) and (b) offering increased guarantees. A possible formulation would be as follows:

• It is proposed that the lifting of the secrecy of communications for national security reasons concerning political persons (i.e. MPs, MEPs, members of the government and deputy ministers), judicial and prosecutorial officials, lawyers and journalists be allowed only if expedited by EYP. The request shall in any case be communicated to ADAE within twenty-four hours. The request, which must be based on specific evidence that indicates an immediate and extremely probable risk to national security, is decided, in the case of political persons, by a special parliamentary committee with broader parliamentary representation, after considering an opinion by ADAE on the matter, and, in the case of other persons, by a special formation of the Council of State, again upon consideration of ADAE’s opinion on each case.

7. The issue of the right of the affected persons to be informed ex post.

The current framework has abolished this right. The Bill, in Article 4 paragraph 7, reinstates it, but (a) by removing such authority from ADAE for the first time since ADAE’s establishment, (b) by providing that the decision procedure of the three-member body provided for, which includes the Commander of EYP, does not keep minutes and does not record the views of the minority, while (c) the procedure can only take place three years after the termination of the prosecution order, and (d) the affected person does not get to know the reasons why they were wiretapped nor the duration of their surveillance. ADAE has made valid criticisms of Article 4 paragraph 7 on all four of the above points, in particular arguing that the provision in question does not abide by the criteria of the ECHR case-law, ⁴ while the delay for such a long time after the cessation of the surveillance, seems to lack purpose beyond the overt logic of raison d’État. In terms of the right to information, there have been relevant proposals in the public debate in a liberal and constitutional direction, including either the simple reinstatement of the pre-2021 framework, ⁵ or the establishment of a new procedure, with ADAE or its President playing a central role in either case. The French legal framework ⁶ does not provide for the possibility of informing the affected party ex post, but instead replaces it with a specific judicial protection procedure ⁷ before the French Council of State. Against this background, a possible proposal along the lines of a liberal and constitutional approach would be as follows:

• It is proposed to restore the previously existing possibility for the affected person to be informed by ADAE, with the retroactive repeal of article 87 of law 4790/2021. Additionally, it is proposed to give the possibility to ADAE to inform the affected person of (a) the reasons and (b) the duration of the lifting of the confidentiality of his/her/their communications for reasons of national security.

8.The issue of the effective exercise of the right to judicial protection.

Τhe complete absence of case law is by all accounts indicative of the absence of judicial monitoring within the present context. The Bill makes no provision as to the possibility of any remedy or recourse on the part of persons who suspect that the secrecy of their communications has been lifted for reasons of national security. Inspired by the French legal framework, Giannakopoulos proposes the introduction of a special procedure with a new substantive legal remedy before the Council of State, for any interested party who has serious indications that the secrecy of his communications may have been lifted for reasons of national security. At the same time, Giannakopoulos also proposes that the President of ADAE should also have a similar discretion, while, in the event of a rejection of the request of the reviewing authority by the judicial body that will have the power to issue the order, the reviewing authority should also have the right of appeal. Following Giannakopoulos in this respect, a proposal that moves in a clearly liberal and constitutional direction could include the following:

• It is proposed to provide for a special substantive remedy, exercised before a special formation of the Council of State, for any interested person, for the purpose of establishing the illegal nature of an ongoing procedure for lifting the secrecy of communications and taking any appropriate measure to stop it.

9. The issue of the effective control of the security services by ADAE.

This issue has a rather complex legal dimension, while at the same time including a real (but also absolutely crucial) aspect, which does not depend on the provisions of regulatory texts: whether ADAE will be equipped with the necessary staff and resources that would allow it to exercise effective control. This latter issue is to a considerable extent beyond the scope of the proposals made in this study, but is, at the same time, crucial in terms of the dimension of the law in force. In any case, ADAE has already criticised Article 8 paragraph 2 of the Bill, which provides that: “By means of an electronic encrypted message, which meets the security requirements of the confidentiality of the content, the entire text of the order requiring the lifting of secrecy for reasons of national security shall be communicated in electronic form (pdf format) to ADAE. The orders sent in this way to ADAE shall be stored and kept in a special file in a system database. The database referred to in the second subparagraph shall be set up and operated at ADAE in accordance with paragraph 3, shall have encrypted data, authenticated access and a log of users’ actions”. According to ADAE, if the wording of this provision is not amended, it implies “[…] with great precision that, with the adoption of said Bill, the ability to register and store the orders and decisions received by ADAE will automatically and compulsorily cease, since, according to the above, the mandatory encryption won’t be possible […] Essentially, in this way, ADAE will de facto become an unreliable Authority and a unique case of a European supervisory authority that will not have its own records of the orders and decisions on the lifting of the secrecy of communications” (passage underlined by the author). It is clear that at least this provision of the Bill must be amended/replaced accordingly, since its implementation as it stands will lead, according to ADAE itself, to the complete debilitation of ADAE for an unknown and possibly indefinite period of time, making even the existing control of EYP impossible. Other proposals for upgrading ADAE include merging it with the Hellenic Data Protection Authority. ⁸ In any case, it is clear that ADAE needs to be upgraded in terms of its competencies, resources and staff in order for it to be able to perform its role as effectively as its European counterparts.

• It is proposed to launch a broad public consultation process to upgrade the legal framework, resources and staffing of ADAE.

10. The issue of the effective control of the security services by the Greek Parliament.

The last proposal concerns the upgrading of parliamentary control, through the clarification of the relevant legal framework and the resolution of the interpretative dispute that has arisen regarding the extent of the obligation of confidentiality of the employees and the Director-General of EYP before the competent Parliamentary Committees. The general objective of any attempt at reform is the effective parliamentary control of the secret services. ⁹ Such control is obviously impossible and futile if those under scrutiny can invoke, even in secret meetings, their duty of confidentiality before parliamentarians.

In this regard, the precedent of the invocation by the former Director-General of EYP of the obligation of confidentiality arising from Article 14 of Law 3649/2008 before the Parliament’s Permanent Committee on Institutions and Transparency requires, first of all, the clear amendment of Article 43A of the Parliament’s Rules of Procedure, which regulates the process for the control of EYP by said Committee. Said article includes the following: “The Permanent Committee on Institutions and Transparency shall also have parliamentary control over matters relating to the activity of the National Intelligence Service (EYP). The Government shall, either on its own initiative or at the request of the Committee, inform the Committee about the activities of EYP, unless there are reasons of overriding public interest or protection of personal data, which the competent Minister shall report to the Committee. The Committee may also invite the Director-Genaral of EYP to a hearing in the presence of the competent Minister. Discussions on the activities of EYP shall be confidential and the members of the Committee shall undertake to maintain that confidentiality even after their term of office has expired. The Committee may publish the findings of its investigations, always taking into account the above obligation of confidentiality”.

In any case, said article provides that the meetings of the Permanent Committee on Institutions and Transparency shall be held in camera and shall be confidential. Furthermore, the relevant legal framework provides for a classification of the relevant state secrets. On the one hand, there is the general secrecy of Article 14 of Law 3649/2008. On the other hand, there is also a duty of confidentiality with regard to the much more narrowly defined secrecy of Article 212 of the Criminal Procedure Code, which refers to “military or diplomatic secrets or secrets relating to State security”, the disclosure of which can only take place after authorisation by the competent Minister. The simplest constitutional solution would be to bend both of these forms of secrecy before parliamentary committees, provided that their operation is equipped with appropriate guarantees of confidentiality. However, as a first step, it could perhaps be possible to bend only the first (general) form of secrecy, either exclusively before the Permanent Committee on Institutions and Transparency or also before the Investigation Committees, and hold a broader debate on the advisability of maintaining the second, narrower form of secrecy covering the most important state secrets.

• It is proposed that article 43A of the Parliament’s Rules of Procedure, which regulates the control of EYP by the Permanent Committee on Institutions and Transparency, be supplemented by adding the following sentence: “The Director-General of the National Intelligence Service (EYP) may not invoke the obligation of confidentiality as per article 14 of law 3649/2008”. A similar sentence should be incorporated into Articles 146 and 147 of the Parliament’s Rules of Procedure, which regulate issues relating to the collection of information and documents and the use of other evidence by the Parliament’s Investigation Committees. There should also be a broad consultation on the possibility of establishing a special procedure for the bending of the secrecy provided for in Article 212 of the Code of Criminal Procedure, before the above-mentioned Parliamentary Committees.

Footnotes