Laws and sausages

on . Posted in English texts

Posting the new draft bill on wiretapping for public consultation without seeking the input of or at least notifying the Authority for Communication Security and Privacy (ADAE) was a major misstep. Not only because, according to the 2003 law that founded the authority, “it issues opinions and provides suggestions and recommendations on measures to ensure the privacy of telecommunications,” but, mainly, because ADAE is the state agency with the institutional knowledge. It knows, better than anyone else, what to do and not to do about this thorny issue.

We hope that this omission was the result of the government’s haste to present the draft legislation on wiretapping because it was forced to by the successive revelations. Or, at the very least, it was the result of government officials’ haste to draft a legal document and not some childish act of revenge toward ADAE, which has helped greatly in shedding light on this scandal.

Whatever the cause, this authority’s potential contribution to achieving an admittedly difficult balance between the demands of security and civil rights is especially valuable. We should also add the fact that Prime Minister Kyriakos Mitsotakis has chosen a well-respected and experienced legal scholar, Christos Rammos, as ADAE president. Rammos, as a vice president of the Council of State, the country’s highest administrative court, bravely resisted the attempt of the SYRIZA/Independent Greeks coalition government to manipulate and control the broadcasting landscape through the awarding of TV station licenses, leading to a prominent former minister now facing a special high court.

As an experienced judge, Rammos could have shielded the government from some silly moves and conflicting issues that mar the draft law. For example, the government (finally, and correctly) proposes a standard procedure for destroying files related to lifting of communications privacy. The law provides that the content of communications surveillance must be destroyed after six months, unless it produces evidence of malfeasance. That’s right, because it involves personal data. The law also provides for destroying the administration files containing supportive evidence for a demand to lift someone’s communications privacy after 10 years. But here’s an oversight: Illegal wiretapping is a felony to which the statute of limitations applies after 20 years. If the decision to wiretap someone was obtained by illegal means (e.g. false statements), the evidence documenting the illegalities will have been destroyed before the statute of limitations kicks in.

This is probably due to a casual oversight by the Ministry of Justice. One can imagine officials saying, “Should I leave it at 10 years?” “OK. And put three years to notify the surveiled person.” As Otto von Bismarck, the great German chancellor, used to say, “Laws are like sausages; it is better not to see them being made.” Why three years to notify (innocent) subjects of surveillance and not two? Why not 30 years to keep records, like another law provides for the publication of sensitive diplomatic documents? There is no explanation.

The government’s law is a major step forward. If nothing else, it brings some order to the fine mess that is EYP, the National Intelligence Agency. But there is a huge gap in terms of accountability and balance of powers. It gives the government majority of the day full control; and the parliament speaker that is given crucial powers in the bill is part of that majority. ADAE must provide its input before surveillance is decided and the Parliament’s Institutions and Transparency Committee must weigh in after the fact, in line with the spirit of the Constitution.

The government’s bill contains many positive proposals. But there are issues that must be debated. The time provided for public consultation, just a week starting on November 15 and expiring last Tuesday, was inadequate. We would like to think that the consultation was not just a smokescreen.

Published in 26.11.2022