‘Legal’ wiretapping for illegal rule

Aleksandar Nikoloski

I will probably not say anything new, if I conclude that the misuse of security services in the entire Balkans is the source of all major political crises. One always remains in disbelief of the need and the obsession of each government to control, and that that control is not aimed at protecting national security or fighting crime, but on the contrary, for a perverse marriage with crime represented by a complete disorder of human rights, and in order for the government to retain its power for a longer period of time. Macedonia is perhaps the best example of how great that desire is – two major crises, in 2000 and in 2015, began precisely with the abuse of the secret services and by illegal wiretapping. The obsession with the old methods of UDBA is so great, that the new generations are infected by the same virus. It needs to be made perfectly clear that until this chapter is closed and we do not get security services that will work for the benefit of citizens and national security, we will not make progress as a society. It must be both real and perceptual. I will write about the real set-up today, as for the perception – the diagnosis is very simple – almost everyone in Macedonia thinks he/she is tapped! As long as this mass fear among people exists, we cannot speak of a free society.

Regarding the real set-up, as the public knows, after the scandal over illegal wiretapping, the European Commission has hired Reinhard Priebe’s expert group twice to give their insights into several key areas, including security services reform. How did SDSM approve those recommendations? With an unconcealed desire to play and create a system that will legalize mass tracking. I deliberately use the word “tracking” because the idea of ​​a new legal solution by which the so-called OTA is to track, in addition to monitoring telephone calls and all communication over the Internet, physical monitoring, video monitoring, etc. The idea of ​​the law is fine, but in it, simply put, an attempt is made to correct the law itself, how paradoxical this sounds! Namely, the draft law foresees the establishment of the so-called Operational Technical Agency (OTA) as a separate body that would operate separately from the Ministry of Interior and the Security and Counter-Intelligence Directorate (our UDBA). The OTA would be the mechanism for activating the monitoring of a certain suspect, and it would be activated only after an appropriately received approval by the authorized court. And it is all fine up to this point, the possibility of the UBK is wiretapping independently, and gets a kind of second controlling authority. However, the problem arises that, in the same law, it is envisaged that this applies only to telephone calls made through a landline or mobile telephone through the networks of Telecom or the mobile operators, and the same provision does not apply to the so-called metadata. In short, metadata are all those actions that you do online. Metadata includes the following data of users of telephone and internet services (including e-mail): the name, the address of the caller and the receiver of the call, the telephone number / IP address, the telephone device and the location of the communicators; time of beginning and end of communication; type of telephone / internet service. Metadata is generated without people being aware of it, that is, without undertaking any communication activity. For instance, e-mail applications on smartphones contact so-called base stations of mobile operators in very short intervals, which constantly generates data on the location of the mobile phone and in which direction it is moving. By analyzing the metadata, it is possible to draw precise conclusions about the private lives of people, such as their social connections, their habits, everyday activities, interests and tastes. For these metadata, which is practically 90 percent of the person’s communication, the rule will apply that the UBK can collect it without a court order, and without the approval of OTA can be collected and can hold them for up to 12 months! Simply put, UBK will be able to follow whoever it want without the person knowing, without a court order, and have all of his or her life in its hands, even though he/she did not commit any crime, thereby making manipulation, blackmails and the endangering of human rights and freedom limitless. Even UDBA, in its golden age, did not have such unauthorized power.

In the proposed legal solutions, what is questionable is the right to keep raw traffic data, which is scheduled for 12 months, contrary to the European practice for storing data for a period of 6 months or less, as well as the changes that technically allow the authority to monitor communications to have direct, permanent and independent access to traffic data (metadata), through appropriate equipment.

What does the European practice say about this? On 8 April 2014, the Grand Chamber of the Court of Justice of the EU annulled the Directive no. 2006/24 / EC. Although the Court finds that the directive implements a legitimate aim in the fight against crime and the protection of national security, it finds that it violates the right to privacy and the right to the protection of personal data of individuals guaranteed by Articles 7 and 8 of the Charter of the EU on fundamental rights. These rights were violated because the directive of the state authorities provided non-selective and mass access to the personal data of the citizens, which was the main reason for its annulment. A survey conducted by the European Union Agency for Fundamental Rights found that all constitutional courts that deal with this issue have found that national metadata retention systems are partially or completely unconstitutional. In its annual report of 2017, the European Union Agency for Fundamental Rights points out that EU members within the framework of national legislation should avoid general and non-discriminatory data retention. National legislation should include strict proportionality checks as well as appropriate procedural safeguards to effectively guarantee the rights to privacy and the protection of personal data. It is necessary to reduce the retention period of the data, to regulate the access (to request a court order) and to accurately define for which needs metadata can be requested. Comparative experiences say that data in other countries are kept shorter or not at all. In Germany, the duration of the data retention was reduced from 6 months to 10 weeks, excluded from retaining all traffic by e-mail, and the need for securing a court order for handing over of retained data to state organs was proclaimed in Austria. The Constitutional Court was the first national a court that declared a large part of the Data Retention Act invalid after the decision reached by the ECJ. The Austrian operators no longer have an obligation to retain the data and submit them to the national authorities; in Lithuania the Law on Electronic Communications of Lithuania transposes the Directive 2006/24 / EC, and the retention of data is carried out in the shortest period provided by the revoked directive – six months.

The proposed changes and solutions of the law on communication monitoring are contrary to international documents and norms on the right to privacy, and in particular to the European Convention on Human Rights (the Convention), which has been in force in Macedonia since 1997. Namely, the Convention in its Article 8 stipulates that every person has the right to respect of his/her private and family life, home and correspondence. The right to respect for private and family life is one of the most freely formulated, and at the same time one of the most comprehensive articles in the Convention. The right to privacy is also regulated in the Universal Declaration of Human Rights, as well as in the International Covenant on Civil and Political Rights, under which no one will be subjected to arbitrary interference in private life, family, home and correspondence, nor attacks on his honor and reputation. Everyone has the right to legal protection against such interference or attacks.

The Committee of Ministers of the Council of Europe in Recommendation No. (85) 1015 where it emphasizes the need to protect the individual from undue interception of communications and privacy violations. This recommendation also points to the fact that the use of wiretapping means requires detailed legal regulation, in particular with regard to the way in which it is carried out, the transmission of information obtained through wiretapping, and the use of such data.

All of this says that we are on the verge of completely avoiding Priebe’s recommendations, and for the “reforms” in the security system Macedonia to become a state of mass monitoring, and thus violation of human rights, to become a big reality show. For this, the public needs to be sensitized and react, because while dealing with particularly important issues such as talks with Greece or the law on bilingualism, SDSM wants to quickly enforce a law that will allow the entire country to be monitored and wiretapped.