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Parliament Delays Adoption of Key Part of Surveillance Regulation
Civil Georgia, Tbilisi / 30 Oct.'14 / 21:57

Parliament passed on October 30 with 65 votes to 31 a proposal extending deadline for tackling security agencies’ unrestricted capability of direct access to telecommunications service providers’ networks from November 1 to February 28, instead of initially offered April 1, 2015.

The proposal met opposition not only from those civil society groups, which have been lobbying actively for depriving the Interior Ministry of its capability of carrying out surveillance without oversight, but also from some lawmakers from the ruling Georgian Dream coalition, mostly from the Free Democrats party. MPs from UNM opposition were also against.

Initial proposal, which was presented by GD lawmaker Shalva Shavgulidze, envisaged extending the deadline till April 1, but agreed to move it forward till February 28, 2015 upon parliament speaker Davit Usupashvili’s initiative.
 
In order for the proposal to go into force, it has yet to be signed into law by President Giorgi Margvelashvili. Two days before the proposal was passed by the Parliament, President Margvelashvili declined to specify when asked on October 28 whether he would use his veto power or not. If vetoed, the Parliament will require votes of at least 76 MPs to overturn it.

This summer the Parliament passed package of legislative amendments setting tighter rules for the law enforcement agencies to carry out surveillance activities, including through introduction of higher standards of justification required for security agencies to obtain court warrant on surveillance, as well as through increasing authorities of the personal data protection inspector.

But legislators left key issue, involving security agencies’ unrestricted capabilities of direct access to telecommunications service providers’ networks, unaddressed. Adopted amendments set November 1, 2014 as deadline for adopting a law to address this long-standing issue. Persisting disagreements over what kind of arrangement should be introduced made it impossible to table a bill by the deadline.

Debates center on the issue of who should have direct access – or ‘key’ as it has been dubbed – to telecommunication service providers’ servers.

The Interior Ministry, backed by the PM, argues that it should retain this ‘key’ to direct access and the office of personal data protection inspector should be empowered, including through technical means, to provide oversight on the security agencies’ use of this capability.

Civil society organizations, among them Georgian Young Lawyers’ Association and Transparency International Georgia, which were engaged in the activities of the working group, established by the Parliament, have tabled a bill according to which the Interior Ministry should be deprived of direct access to telecom operators’ services and so called “two-key system” should be introduced, wherein one ‘key’ will be held by telecom operators themselves and another one by the judiciary; this latter, according to this proposal, will on the one hand decide whether to issue warrant on security agencies’ request for surveillance and in case of approval will also technically authorize telecom operators to carry out eavesdropping upon law enforcement agencies’ request.

“We have not yet defined what kind of system it should be and I am not ready to answer a question where the ‘key’ should be… That’s why it is offered to extend the deadline,” GD MP Shalva Shavgulidze said at a parliamentary session on October 30.
 
In his speech during the debates, just before the vote, parliament speaker Davit Usupashvili said that this is an issue, which the legislative body should have resolved much earlier.

“We had no appropriate pace and we should admit it,” said Usupashvili, who gave his lukewarm support to extending the deadline, calling it a “tough decision”.

He suggesting that in the current situation there was no better option except of postponing the issue.

Usupashvili said that by adopting of wide-ranging legislative amendments this summer on personal data protection and oversight of security agencies’ surveillance activities, the Parliament launch an important process, which has to be concluded by deciding the issue of ‘key’ to direct access to telecom operators’ servers. Without giving more time to these elaborations, he said, the entire process may collapse.

“Yes it’s our, the Parliament’s fault that we have to postpone it… If not extended we will face a reality wherein there is no legal framework, no new rules how to arrange the system, and the investigative agencies will have no legal framework for carrying out any [surveillance] actions at all starting from November 1,” Usupashvili said.

“If we fail to do it now and if this legal gap emerges, the chance for resolving properly of this issue [of which institution should hold the ‘key’] will equal to zero,” the parliament speaker said.

The parliament speaker also said that everyone, including lawmakers, government members and civil society representatives, should “refrain from expressing radical opinions” over this issue in order not to harm the entire process.

He then also criticized remarks by PM Irakli Garibashvili, who earlier on October 30 spoke strongly against of depriving the Interior Ministry of its capabilities to have direct access to telecom operators’ servers.

“I do not think that PM’s statement today was the best example of trying to find a consensus,” Usupashvili said. “But I also understand him, because many categorical opposite opinions have also been voiced in recent days. But politicians, lawmakers, government members have more obligations and responsibilities and that’s why we should in no way take a step that may obstruct making right decisions.”

Usupashvili then asked the President not to veto extending of the deadline.

“Signing [into law] of this decision is needed for normal functioning of the law enforcement agencies,” said Usupashvili, who also expressed regret that because of the Parliament’s last minute discussion the President had only about 24 hours to decide whether to veto the decision or not.

At the end of his speech, Usupashvili also offered to move the proposed deadline from April 1 to February 28, 2015.

“I think we will tackle this issue in order to solve it in a way how the European standards require it,” the parliament speaker said.

With this decision Parliament has also delayed till February 28, 2015 to adopt data retention regulations. Regulations should define where data – it involves records which can identify a caller and date, place, duration and the means of communication, but not the content of the communication itself – will be retained and for how long.

Lawmakers from opposition UNM party, who during the debates were acknowledging that the problem of illegal surveillance also persisted when they were in power, voted against extending the deadline, accusing the authorities of not having political will to solve the problem and not willing to give up this capability of unrestricting simultaneous monitoring of thousands of mobile phone numbers without any oversight. UNM has called on President Giorgi Margvelashvili to veto the proposal.

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