NGOs Criticize Majority Bill on Covert Investigation

Non-Governmental Organizations (NGOs) united under the campaign This Affects You have expressed disapproval of the Bill on Covert Investigative Actions, initiated by the ruling party Georgian Dream (GD) on February 6.

The legislative package provides for the creation of a legal entity of public law (LEPL) the Operative-Technical Agency of Georgia, which will be responsible for covert surveillance. The Agency will be under the supervision of the State Security Service (SSS), however, the agency will be accountable before the Prime Minister and will submit a generalized report of its activities annually to the PM.

The NGOs believe that, together with the technical implementation of covert surveillance, the Agency will have a number of other functions, in the interests of obtaining as much information as possible.

“The Agency will also be granted the powers to exercise control on electronic communications companies. Therefore, instead of an independent structure, the legislative package provides for the creation of a unit of the SSS with even more powers and an increased risk of these powers being abused,” the statement of This Affects You reads.

The initiative for the new bill of covert investigative actions was raised after the Constitutional Court of Georgia ruled on April 14, 2016, that the existing model of surveillance, with the Interior Ministry and Personal Data Protection Inspector as key players, needed to be changed.

The Court stated that the legislation allowing the police to have direct, unrestricted access to telecom operators’ networks to monitor communications was unconstitutional and set March 31, 2017 as the deadline for implementing the court’s decision and replacing the existing surveillance regulations with new ones.

Now, by presenting the new bill, the majority plans to transform the “two-key model” into a three-key one, where access to surveillance will be in hands of the new LEPL under the SSS, Personal Data Protection Inspector, and the Judge of the Supreme Court.

On Friday, This Affects You campaigners provided a list of the main risks and shortcomings related to the new legislative package:

1. The legislative package contradicts a judgment of the Constitutional Court- in which the Court stated that the “Creation, possession, and administration of technical means of obtaining personal information in real time and having direct access to personal information using this means, by an agency that has investigative functions or is professionally interested in familiarizing itself with this information, creates an excessive threat of unsubstantiated interference with personal lives.”

2. The legislative package fails to provide safeguards for the independence of the new agency.

3. The number of structural units with covert surveillance powers increases.

4. The powers of the agency carrying out covert surveillance are expanded.

5. The mechanisms for controlling the agency have a formal character – apart from the State Security Service, all other mechanisms for controlling the agency will be formal or weak.

6. The agency’s interference with the activity of private companies – the agency, a part of the State Security Service, will not only carry out covert investigative and certain operative-investigative actions but will also interfere with the activities of private companies.

Public Defender of Georgia, Ucha Nanuashvili, also released a statement regarding the issue.

“The Public Defender of Georgia negatively assesses the bill on covert investigative actions initiated in the Parliament of Georgia and believes that the fact the so-called "key" will still belong to the State Security Service. On the one hand it will not ensure execution of the Constitutional Court’s decision of April 14, 2016, and, on the other hand, will not safeguard the public domain with regard to illegal wiretapping,” the statement reads.

Moreover, the bill is strongly opposed by the parliamentary opposition parties and the Presidential Administration. They say the bill is even worse than the previous one and does not offer anything new.

The ruling party says the bill ensures the new agency’s maximum independence, and it is line with the verdict of the Constitutional Court.

Thea Morrison