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The mountains have ears: legislating against surveillance in Georgia

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The late 2000s saw illegal wiretaps and surveillance ramp up in Georgia. New laws to deal with this legacy are yet to truly pay off. на русском языке

Omar Tsotsoria
29 October 2015

In Georgia, you often hear phrases such as 'they're listening to all of us' and 'if you hear your own voice on the telephone, you’re being tapped’. According to a Caucasus Barometer survey taken in 2013, 63 per cent of Georgians responded negatively when asked 'Would you give out personal information when speaking with your friends over the telephone?' 

In the wake of revelations in recent years, politicians and society at large in Georgia agree that 'big brother' must be brought under control

'I was born in the Soviet Union. I knew that the KGB were listening to us'

On winning the 2012 parliamentary elections, the leader of the opposition coalition Georgian Dream made a promise to 'put an end to surveillance'.

Georgian Dream may have come to power in 2012, but a law constraining the authorities' ability to engage in hidden wiretapping or surveillance of citizens abroad was delayed. Parliament tried several times to change the schedu le for the law's implementation, and, in doing so, created the impression that the authorities wanted to sabotage the process. 

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Tbilisi at night. whereisemil / Flickr. Some rights reserved.Eventually, President Giorgi Margvelashvili put a stop to this. In late 2014, the Georgian parliament approved a draft bill that kept the intelligence services' direct access to secret wiretaps until February 2015. Margvelashvili deployed his presidential veto against this bill, and parliament was compelled to pass it urgently.

Speaking about his decision at the time, Margvelashvili emphasised two reasons for passing this bill so urgently. First, the public was waiting for the bill to be passed; second, the time had come for Georgia’s intelligence services to start working along modern, democratic lines.

'I was born in the Soviet Union. I knew that the KGB were listening to us,' said Margvelashvili. ‘Then I lived in post-Soviet Georgia, where Saakashvili's regime chose illegal surveillance as a symbol of the state’s increased power, before we all pronounced sentence on that regime together. This means that, two years later, we should put public consensus on this issue into law. I welcome the law that was passed in August, but many details of that law had not been polished.’

Meanwhile, Margvelashvili stated that the authorities should pass laws on which there is public consensus faster. ‘Laws that concern democracy, human rights, their protection, should be passed quickly.’ The president’s decision to veto this bill in October meant that, from the very next day, the Interior Ministry’s technical operational department lost the right to store communications data, as well as data from secret wiretaps and surveillance.

But legal norms passed in August 2013 that give the Interior Ministry’s technical operations department the right to access communications lines, junction boxes, servers, databases, networks and other forms of communication, remain in force. The technical operations department still has the right to build and install surveillance equipment. 

Majority rule 

According to the bill passed by parliament, the security services received those powers until 28 February 2015. During this period, the parliament should have passed a new law defining who has access to information passing through communications companies, as well as how much and how long metadata can be stored. 

In the end, the October law was passed by a majority. Vakhtang Khmaladze, a member of the parliamentary majority, was one of the deputies who wished to see the law passed as quickly as possible. According to Khmaladze, after Georgian Dream came to power, a lot of evidence of mass surveillance came to light: ‘Many files of illegal taps and surveillance videos were found in the Interior Ministry.’ Khmaladze says that the authorities were already trying to correct the situation in 2013. 

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Tbilisi metro station. orientalizing / Flickr. Some rights reserved.‘The first changes were made in 2013. Secret tapping is one of the “concealed operational measures”, and we removed this section on “concealed operational measures” from the law on operational investigational measures. 

'This section then went into the criminal code, where we defined the basis for such measures, and the norm that they can only be used when other investigative measures are deemed inadequate. This should be an extreme measure: such measures can only be initiated on the decision of a judge, and only in a case of urgent necessity, by the order of a public prosecutor, which should be presented to a judge within 24 hours. 

‘If the judge does not approve permission for a secret wiretap, then it is annulled and the materials gathered cannot be used as evidence [in a court of law]. Thus, in 2013, we gained full judicial control of secret surveillance and the exchange of information on the internet. Of course, what we did in 2013 was enough to ensure that information gained illegally could not be used in judicial proceedings […]. It goes without saying that this was enough to stop a situation whereby one person listened in on another. Well, and the fact that this couldn’t be used as evidence, there was still interference in personal relationships.

‘A harsher penalty was introduced for illegal wiretaps. If illegal surveillance is discovered, then it doesn’t matter who did it—a police officer, investigator, anyone—he will be punished harshly. The fact that the person under illegal surveillance has to report it has also changed, as well as that any information not used in court must be destroyed. We also defined how information should be destroyed—the judge who approved the wiretap must be involved, as well as the possibility of appealing against such a decision. Georgia is now one of those rare states in the post-Soviet space where, since 2013, there is a special service dedicated to protecting citizens’ personal information.’ 

Information inspectorate 

One of the people involved in this new service protecting personal information is deputy inspector Nikoloz Bregvadze: ‘According to the competencies enshrined in the law on personal information, we [personal information inspectors] oversee the legality of processing information in private and state enterprises. If we discover violations, we have the right to demand they are put right, to stop ungrounded information processing. We can also fine any organisation, state or private, if we find out they have broken the law.’ 

‘In simple terms, today the scheme might work as follows,’ says Bregvadze, ‘for example, a crime has been committed, and the police need to tap 10 people. The police make their case to a judge or prosecutor, and, as soon as they receive confirmation, they start the listening procedure. The confirmation papers and prosecutor’s order comes to us. We also get the initiation papers in electronic form. We complete the documentation and prepare authorisation, our service then confirms the legality of the procedure. But we don’t have access to the materials. We also make sure that the recordings take place in the period indicated in the court’s or prosecutor’s documents.’

However, cases where security officers and public officials use their powers to further their own ends are common. The personal information protection service has already fined Georgia’s Interior Ministry three times.

Telephone box in Tbilisi, Georgia, 2003. James W. Berk/Flickr. Some rights reserved.

Telephone box in Tbilisi, Georgia, 2003. James W. Berk/Flickr. Some rights reserved

For instance, Bregvadze remembers a case where a young woman contacted his department to report that an unknown man had received her number and harassed her. It turned out that the public employee had processed this woman’s information, having inputted her license plate into the service’s database. The identity of the individual in question was later established, and he was reprimanded and fined as a result. 

‘Constant connection’

Lika Sajaia, from Open Society Georgia, helped author the bill to prevent secret wiretaps. According to Sajaia, the bill was evaluated and approved by European experts, and she agrees with Khmaladze that the alterations have improved the draft law: ‘Changes made since 1 August 2014 have substantially improved the law, and you could say that, on the level of jurisprudence, this conforms to European standards.’

For Sajaia, the problem lies not in the draft law, but elsewhere: ‘the technical side of things makes it very likely that wiretaps, “constant connection” [when the Interior Ministry is permanently connected to mobile operators’ servers], will happen anyway.’ And this means that Georgia’s Interior Ministry is constantly monitoring mobile operators in Georgia—that is, they use the ‘keys’, which allow control of any call. 

There is an inspector in charge of personal information who has a second key. But, according to Sajaia, the Interior Ministry will listen in on its citizens regardless: ‘When the Interior Ministry is constantly connected to the mobile companies, there’s always going to be a high risk that they’ll abuse their powers, they’ll find “another way” to listen in.’ Sajaia believes that the Interior Ministry’s technical capabilities are powerful enough to bypass Georgia’s constitution with ease.

Georgia’s Institute for Development of Freedom of Information, founded in 2009, is dedicated to increasing governmental transparency, developing an informed civil society and access to public information. Ucha Seturi, an expert in media and telecommunications law at the institute, tells me that Georgian citizens are not protected from telephone companies giving out their personal information

For Seturi, the introduction of personal information inspectors is a positive step, but the telephone companies themselves should protect this information. Seturi says that the United Nations and European Union agree that limitations on human rights can be imposed for various reasons, including public safety. ‘The logic is clear, the main thing is for the law to be enforced. The risks that lead to limits on our rights are very real.’

Indeed, Georgia has long aspired to EU and NATO membership, and human rights are a priority in this area. A 2014 report on the draft laws relating to surveillance activities, prepared by EU experts, states: ‘Surveillance and smart surveillance are growth areas which are also seeing a blurring or lines between the public and the private sectors. In this case, it is recommended that Georgia might follow closely and await the outcomes of the debates over these subjects which may be expected to take place over the next 24-48 months and then act accordingly taking all reasonable precautions should it decide to be an “early adopter” for any of the new legislative and other policy measures currently being considered.’ 

Despite the changes made to the law, people’s opinions remain more or less the same. They still avoid talking openly on the telephone: the idea that ‘we are all under surveillance’ has long taken root in Georgia.

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