Excerpts from leaked Draft ECHELON EP Ctte report

["Caspar Bowden" <cb@fipr.org>]

http://fas.org/irp/program/process/europarl_draft.pdf

pp.19	The practical implication for the ECHELON states (the alliance formed
for the purposes of interception) is that communications can be intercepted
at acceptable cost only at the terminals of the underwater cables which land
on their territory. Essentially, therefore, they can only tap incoming or
outgoing cable communications! In other words, their ACCESS TO CABLE
COMMUNICATIONS IN EUROPE IS RESTRICTED TO THE TERRITORY OF THE UNITED
KINGDOM, since hitherto internal communications have mostly been transmitted
via the domestic cable network. The privatisation of telecommunications may
give rise to exceptions, but these are specific and unpredictable!

pp.20	A small proportion of intra-European communications are routed VIA A
SWITCH IN LONDON TO WHICH THE BRITISH MONITORING STATION GCHQ HAS ACCESS.
The majority of communications do not leave the continent: for example, more
than 95% of German Internet communications are routed via a switch in
Frankfurt.

pp.37	National Security Council Intelligence Directive 9 (NSCID 9) of 10
March 1950 the term foreign communications is defined for COMINT purposes:
it comprises ANY GOVERNMENT COMMUNICATIONS IN THE WIDEST SENSE (NOT ONLY
MILITARY) AND ALL OTHER COMMUNICATIONS WHICH MIGHT CONTAIN INFORMATION OF
MILITARY, POLITICAL, SCIENTIFIC OR ECONOMIC VALUE.

pp.51 If a Member State were to promote the use of an interception system,
which was also used for industrial espionage, by allowing its own
intelligence service to operate such a system or by giving foreign
intelligence services access to its territory for this purpose, IT WOULD
UNDOUBTEDLY CONSTITUTE A BREACH OF EC LAW. Under Article 10 TEC, the Member
States are committed to acting in good faith and, in particular, from
abstaining from any measure which could jeopardise the attainment of the
objectives of the Treaty. Even if the interception of telecommunications is
not carried out for the benefit of the domestic industry (which would, in
fact, be equivalent in effect to State aid, and thus in breach of Article 87
TEC), but for the benefit of a non-member state, activities of this kind
would be fundamentally at odds with the concept of a common market
underpinning the EC Treaty, as it would amount to a distortion of
competition.

pp.53 Privacy thus enjoys special protection: potential violations are
authorised only following analysis of the legal considerations and in
accordance with the principle of proportionality. The ECHELON states are
also well aware of the problem. However, these states' PROTECTION PROVISIONS
ARE GEARED TO RESPECT FOR THE PRIVACY OF THEIR OWN INHABITANTS, so that as a
rule European citizens do not benefit from them in any way. For example, the
US provisions which lay down the conditions governing electronic
surveillance DO NOT SET THE STATE'S INTEREST IN OPERATING A PROPERLY
FUNCTIONING INTELLIGENCE SERVICE AGAINST THE INTERESTS OF EFFECTIVE, GENERAL
PROTECTION FUNDAMENTAL RIGHTS, BUT RATHER AGAINST THE NEED TO PROTECT THE
PRIVACY OF 'US PERSONS'

pp.57	Invasions of privacy may not be restricted to the absolute minimum,
but mere usefulness or desirability is not sufficient justification4. The
view THAT THE INTERCEPTION OF ALL TELECOMMUNICATIONS, EVEN IF PERMISSIBLE
UNDER NATIONAL LAW, REPRESENTS THE BEST FORM OF PROTECTION AGAINST ORGANISED
CRIME WOULD AMOUNT TO A BREACH OF ARTICLE 8 OF THE ECHR. In addition, given
the specific nature of the activities conducted by intelligence services,
activities which demand secrecy and, therefore, a particularly careful
weighing-up of interests, provision must be made for more stringent
monitoring arrangements. The European Court of Human Rights has explicitly
drawn attention to the fact that A SECRET SURVEILLANCE SYSTEM OPERATED FOR
THE PURPOSE OF PROTECTING NATIONAL SECURITY CARRIES WITH IT THE RISK THAT,
UNDER THE PRETEXT OF DEFENDING DEMOCRACY, IT MAY UNDERMINE OR EVEN DESTROY
THE DEMOCRATIC SYSTEM, so that more appropriate and more effective
guarantees are needed to prevent such misuse of powers5. Accordingly, the
legally authorised activities of intelligence services are only consistent
with fundamental rights if the ECHR contracting party has established
adequate systems of checks and other guarantees to prevent the misuse of
powers.

pp.58	...must comply with a set of conditions in order to demonstrate that
the activities of their intelligence services are compatible with Article 8
of the ECHR. IT IS QUITE OBVIOUS THAT INTELLIGENCE SERVICES CANNOT BE
ALLOWED TO CIRCUMVENT THESE REQUIREMENTS BY EMPLOYING ASSISTANCE FROM OTHER
INTELLIGENCE SERVICES subject to less stringent rules.

pp.59 If a state allows another countrys intelligence service to work on
its territory...MUST CARRY OUT CHECKS TO ENSURE THAT THE ACTIVITIES OF
INTELLIGENCE SERVICES ON THEIR TERRITORY DO NOT REPRESENT A VIOLATION OF
HUMAN RIGHTS.

pp.60 Things are very different, however, in the case of the USA: it is not
an ECHR contracting party and it has not made its intelligence operations
subject to a similar supervisory system. There are very precise rules
governing the activities of its intelligence services, in so far as those
activities concern US citizens or persons legally present on US territory.
However, OTHER RULES APPLY TO THE ACTIVITIES OF THE NSA ABROAD, AND MANY OF
THE RELEVANT RULES ARE CLASSIFIED AND THUS INACCESSIBLE TO THE PUBLIC. A
further fact gives greater cause for concern, namely that although the US
intelligence service is subject to monitoring by the relevant House of
Representatives and Senate committees, these COMMITTEES SHOW LITTLE INTEREST
IN THE ACTIVITIES OF THE NSA ABROAD. There would seem to be good reason,
therefore, to call on Germany and the United Kingdom to take their
obligations under the ECHR seriously and to make the authorisation of
further intelligence activities by the NSA on their territory contingent on
compliance with the ECHR.

Under the terms of the ECHR, interference in the exercise of the right to
privacy may only be carried out on the basis of legal rules which are
generally accessible and whose implications for individuals are foreseeable.
This requirement can be met only if the USA DISCLOSES TO THE PUBLIC IN
EUROPE HOW AND UNDER WHAT CIRCUMSTANCES INTELLIGENCE-GATHERING IS CARRIED
OUT. If incompatibilities with the ECHR emerge, US rules must be brought
into line with the level of protection provided in Europe.

pp.61 The American authorities have repeatedly tried to justify the
interception of telecommunications by accusing the European authorities of
corruption and taking bribes2. It should be pointed out to the Americans
that all EU Member States have properly functioning criminal justice
systems. If there is evidence that crimes have been committed, the USA must
leave the task of law enforcement to the host countries. IF THERE IS NO SUCH
EVIDENCE, SURVEILLANCE MUST BE REGARDED AS UNPROPORTIONAL, A VIOLATION OF
HUMAN RIGHTS AND THUS INADMISSIBLE. In other words, COMPLIANCE WITH THE ECHR
CAN BE GUARANTEED ONLY IF THE USA RESTRICTS ITSELF TO SURVEILLANCE MEASURES
CONDUCTED FOR THE PURPOSE OF SAFEGUARDING ITS NATIONAL SECURITY, BUT NOT FOR
LAW ENFORCEMENT PURPOSES.

...US telecommunications surveillance operations carried out on European
territory are consistent with human rights only if the USA introduces
appropriate, effective checks on such operations carried out for the purpose
of safeguarding its national security or if the NSA MAKES ITS OPERATIONS ON
EUROPEAN TERRITORY SUBJECT TO THE AUTHORITY OF THE CONTROL BODIES SET UP BY
THE HOST STATE, i.e. Germany or the United Kingdom.

pp.64 As a matter of principle, the effectiveness of the monitoring can be
said to be high, and far-reaching guarantees that the interference is
consistent with the law can be said to exist, if the power to order
telecommunications surveillance is reserved for the highest administrative
authorities, IF THE SURVEILLANCE CAN BE IMPLEMENTED ONLY ON THE BASIS OF A
WARRANT ISSUED BY A JUDGE AND IF AN INDEPENDENT BODY SCRUTINISES THE
PERFORMANCE OF THE SURVEILLANCE MEASURES.

pp.65 However, the wording of the LAW DOES NOT MAKE IT CLEAR WHETHER THE
NON-TARGETED INTERCEPTION OF COMMUNICATIONS, communications which are then
checked using keywords, would also be covered by the concept of
'interception' as defined in the REGULATION OF INVESTIGATORY POWERS ACT 2000
(RIP) if the intercepted communications were not analysed on British soil,
but merely transmitted abroad as 'raw material'.

Intelligence and Security Committee (ISC)3,...Unlike the monitoring
committees set up by other states, which are generally elected by the
national parliament or appointed by the Speaker of that parliament, they are
appointed by the Prime Minister after consulting the Leader of the
Opposition.

pp.66 ...your rapporteur would like to point out that the existence of a
monitoring committee responsible for scrutinising the activities of
intelligence services is very important: ... with a view to the performance
of their special task THEY ARE ENDOWED WITH SPECIAL RIGHTS VITAL TO THE
MONITORING OF ACTIVITIES IN THE INTELLIGENCE SECTOR. [CB - does ISC have any
such powers ?]

pp.67 Moreover, the issue of the protection of European citizens will be
placed in an entirely new context when, under a common security policy, the
first moves are made towards cooperation among the Member States
intelligence services. Citizens will then look to the European institutions
to adopt adequate protection provisions. The European Parliament, as an
advocate of constitutional principles, will then have the task of lobbying
for the powers it needs, as a democratically elected body, to carry out
appropriate monitoring. In this connection, the European Parliament will
also be required to establish conditions under which the confidential
processing of sensitive data of this kind and other secret documents by a
special committee whose members are bound by a duty of discretion can be
guaranteed. Only once these conditions have been met will it be realistic,
and, with a view to EFFECTIVE COOPERATION AMONG INTELLIGENCE SERVICES  THE
SINE QUA NON OF A SERIOUS COMMON SECURITY POLICY  responsible, to press for
these monitoring rights.

pp.83 E-MAILS CAN AND SHOULD BE ENCRYPTED BY EVERYONE. THE OFT-REPEATED
CLAIM THAT A PERSON HAS NO SECRETS AND THUS HAS NO NEED TO ENCRYPT MESSAGES
MUST BE COUNTERED BY POINTING OUT THAT WRITTEN MESSAGES ARE NOT NORMALLY
SENT ON POSTCARDS. However, an unencrypted e-mail is nothing other than a
letter without an envelope. The encryption of e-mails is secure and
relatively straightforward and user-friendly systems, such as PGP/GnuPG, are
already available, even free of charge, to private individuals on the
Internet. Unfortunately, they are not yet sufficiently widely distributed.
The public authorities should set a good example and themselves employ
encryption as a standard practice in order to demystify the process.

..IF SECURITY IS TO BE TAKEN SERIOUSLY, ONLY THOSE OPERATING SYSTEMS SHOULD
BE USED WHOSE SOURCE CODE HAS BEEN PUBLISHED AND CHECKED, SINCE ONLY THEN
CAN IT BE DETERMINED WITH CERTAINTY WHAT HAPPENS TO THE DATA.

pp.84 the European Security and Defence Initiative. This initiative aims at
the creation of a multinational force of between 50 000 and 60 000 troops by
the second half of 2003. THE EXISTENCE OF SUCH A MULTINATIONAL FORCE WILL
MAKE THE DEVELOPMENT OF AN AUTONOMOUS INTELLIGENCE CAPACITY INEVITABLE. The
simple integration of the existing WEU intelligence capacity will be
INSUFFICIENT for this purpose. Further cooperation between the intelligence
agencies of the Member States, well beyond the existing forms of
cooperation, cannot be avoided.

However, the further development of the CFSP is not the only factor leading
to closer cooperation among the Unions intelligence services. Further
economic integration within the European Union will likewise necessitate a
more intensive cooperation in the field of intelligence collection. A united
European economic policy implies a united perception of economic reality in
the world outside the European Union. A united position in trade
negotiations within the WTO or with third countries calls for joint
protection of the negotiating position. Strong European industries need
joint protection against economic espionage from outside the European Union.

Professional advantages...Budget advantages...Political advantages...merely
illustrate the growing importance of cooperation within the European Union.
In the past nation states used to guarantee their own external security,
internal order, national prosperity and cultural identity. Today, the
European Union is in many fields in the process of taking up a role at least
complementary to that of the nation state. IT IS INCONCEIVABLE THAT THE
INTELLIGENCE SERVICES WILL BE THE LAST AND ONLY AREA NOT AFFECTED BY THE
PROCESS OF EUROPEAN INTEGRATION.

pp.86 The major question therefore is this: will growing European
cooperation in the field of intelligence gathering seriously disrupt
relations with the United States, or might it lead to a strengthening of
those relations? How will EU/US relations develop under the new Bush
Administration? And, in particular, HOW WILL THE SPECIAL RELATIONSHIP
BETWEEN THE UNITED STATES AND THE UNITED KINGDOM BE MAINTAINED IN THIS
FRAMEWORK?

Some take the view that there need not be a contradiction between the
British/US special relationship and the further development of the CFSP.
Others believe that intelligence gathering may be precisely the issue which
forces the United Kingdom to decide whether its destiny is European or
transatlantic. Britains intimate links with the US (and with the other
partners in the UKUSA agreement) may make it more difficult for other EU
states to share intelligence amongst themselves  because Britain may be
less interested in intra-European sharing, and because its EU partners may
trust Britain less. Equally, if the US believes that Britain has developed
special links with its EU partners, and that this is part of a European
special agreement, the US may become reluctant to continue sharing its
intelligence with the United Kingdom. Closer EU cooperation in the field of
intelligence may therefore constitute a serious test of the European
ambitions of the United Kingdom and of the EUs capacity for integration.

pp.87 The European Union should become a more equal partner, not only in the
economic field, but also in the field of defence and therefore in the field
of intelligence collection. A more autonomous European intelligence capacity
should therefore not be seen as weakening transatlantic relations, but
should be used to strengthen them by establishing the European Union as a
more equal and more capable partner. At the same time, the European Union
must make independent efforts to protect its economy and its industry
against illegal and unwanted threats such as economic espionage,
cyber-crime, and terrorist attacks.

However, transatlantic understanding is necessary in the field of industrial
espionage. The European Union and the United States should agree on a set of
rules laying down what is and what is not allowed in this area. With a view
to strengthening transatlantic cooperation in this field, A JOINT INITIATIVE
COULD BE UNDERTAKEN AT WTO LEVEL using that organisations mechanisms to
safeguard fair economic development worldwide.

ALTHOUGH THE ISSUE OF THE PROTECTION OF EUROPEAN CITIZENS PRIVACY MUST
REMAIN FUNDAMENTAL, THE FURTHER DEVELOPMENT OF A JOINT EUROPEAN UNION
INTELLIGENCE CAPACITY SHOULD BE CONSIDERED NECESSARY AND INEVITABLE.
Cooperation with third countries, and in particular the United States,
should be maintained and, very possibly, strengthened. This does not
necessarily mean that European SIGINT activities should automatically be
integrated in an independent European Union ECHELON system, or that the
European Union should become a full partner in the present UKUSA Agreement.
However, the development of proper European responsibility in the field of
intelligence collection must be actively considered. AN INTEGRATED EUROPEAN
INTELLIGENCE CAPACITY DEMANDS, AT THE SAME TIME, A SYSTEM OF EUROPEAN
POLITICAL CONTROL OVER THE ACTIVITIES OF THESE AGENCIES. Decisions will have
to be taken on the procedure for assessing intelligence and for taking the
political decisions which result from an analysis of intelligence reports.
The lack of such a system of political control, and therefore of political
awareness and
responsibility for the process of intelligence collection, would be
detrimental to the process of European integration.

pp.88 That a system for intercepting communications exists, operating by
means of cooperation proportionate to their capabilities among the USA, the
UK, Canada, Australia and New Zealand, IS NO LONGER IN DOUBT. It has been
established that this system is operated on the basis of the UKUSA
Agreement.

pp.91 Recommendations

Combating industrial espionage
...
- The Commission and Member States are asked to devise appropriate measures
to promote, DEVELOP AND MANUFACTURE EUROPEAN ENCRYPTION TECHNOLOGY AND
SOFTWARE and ABOVE ALL TO SUPPORT PROJECTS AIMED AT DEVELOPING USER-FRIENDLY
OPEN-SOURCE ENCRYPTION SOFTWARE.
- Both the European institutions and the PUBLIC ADMINISTRATIONS OF THE
MEMBER STATES ARE CALLED UPON SYSTEMATICALLY TO ENCRYPT E-MAILS SO THAT
ULTIMATELY ENCRYPTION BECOMES THE NORM.
- Member States are called upon to consider to what extent industrial
espionage can be combated by means of international law, particularly
whether WTO rules could be adopted which would render contracts null and
void if obtained by means of industrial espionage.

...
Compliance with Article 8 of the ECHR
...
- The Member States intelligence services are called upon to accept data
from other intelligence services only in cases where such data has been
obtained in accordance with the conditions laid down by their own domestic
law, as Member States cannot evade the obligations arising from the ECHR by
using other intelligence services.
- Germany and England are called upon to make permission for FURTHER
INTELLIGENCE OPERATIONS BY THE USA CONDITIONAL ON THEIR COMPLIANCE WITH THE
ECHR, AND TO CHECK SUCH COMPLIANCE, AS THEY ARE RESPONSIBLE for ensuring
that intelligence operations permitted or even merely tolerated within their
territory respect human rights.

Protecting European citizens
- The Member States are called upon to aspire to a common level of
protection against intelligence operations BASED ON THE HIGHEST LEVEL OF
PROTECTION which exists in any Member State, since as a rule it is citizens
of other states, and hence also of other Member States, that are affected by
the operations of foreign intelligence services.
- NATIONAL COMMITTEES RESPONSIBLE FOR OVERSEEING INTELLIGENCE SERVICES ARE
REQUESTED TO ATTACH GREAT IMPORTANCE TO PROTECTION OF PRIVACY when
exercising their supervisory powers, irrespective of whether it is their own
citizens, citizens of other Member States or third-country nationals who are
being subjected to surveillance.


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