Again about the monitoring
I want to continue the discussion concerning the monitoring, so I am going to state my attitude to the new draft of the law «On the monitoring of telecommunications».
The Cabinet of Ministers introduced this law draft to the Supreme Rada. The draft was developed in the framework of the fulfillment of «anti-terrorist» normative acts (the Resolution of the Cabinet of Ministers and the Edict of the President) adopted at the end of 2001 after the events of 11 September in the USA.
Since the question of the monitoring is closely connected with citizens right for privacy, in particular, for the confidentiality of phone talks and correspondence, the presented law draft must be essentially recast.
I reckon that this recast should mainly consist in the concretization of the following principal conditions of the introduction and exploitation of the monitoring system.
1. PERMISSION TO CONDUCT THE MONITORING
The draft (Article 5) states that the monitoring is realized after a court decision. Yet, in practice, many organs, which carry out the ODA, as well as counterespionage and intelligence activities, get the permission for the access to the monitoring system not from court, but from the special organ: the Security Service of Ukraine (Article 9 of the draft). So, the Security Service gives the permission to itself promising «to be honest».
In my opinion, a terminal of the monitoring system must be placed in a court organ, and the access to the system must be rendered only from this terminal, only to the precisely determined officials, for the precisely determined term and with obligatory log-keeping. The system of the monitoring must the projected and realized in the way that should make impossible the access to any data about any person, except the data that were inputted from the court terminal and logged.
2. CONTROL OVER THE LOG
Article 5 of the draft envisages keeping the log, but it is known only that the log-keeping will be realized «by means of new informational technologies» and «the procedure of keeping and storage of the log of the monitoring of telecommunications will be established by the Cabinet of Ministers of Ukraine».
I think that such vagueness is inadmissible, as well as the reduction of the role of such important question as the independent control over the use of the monitoring system, which is extremely dangerous for human rights.
The concrete procedures of the control over the monitoring must be stipulated in details by this Law. The technical equipment for keeping the log must be placed in the prosecutors office, and the ombudsperson must have the access to the log.
3. ACCESS TO DATA AFTER THE CLOSURE OF A CASE
Article 12 envisages the right of citizens «to obtain, in the accordance to the legal procedure, the written explanations concerning the restriction of their rights and freedoms during the monitoring of telecommunications and to appeal against these activities», but the law stipulates neither the concrete procedure of obtaining the explanations, nor the duty of the officials to give the explanations, nor the corresponding right for apatrides, foreigners and (especially!) juridical persons and groups of persons, who also, according to Article 1, are «the objects of monitoring».
In my opinion, after the closure of a case and after the end of the term of the monitoring established by court, as well as in all other cases of stopping the monitoring, «the physical or juridical person (or a group of persons)» must obtain the detailed log of the monitoring concerning them for the further appeal to court (if needed) against the activities of the «anti-terrorist» organs. Strict criminal responsibility of the officials and the compensation of the inflicted damage by the Ukrainian state should be envisaged, if such log would not be presented or would be incomplete.
4. TECHNICAL MEANS FOR THE MONITORING AND LOG-KEEPING
The draft does not contain any provisions concerning the technical means, except «the purchase or development after the agreement». Such «development», «certification» and «meeting the requirements» result, in fact, in the appearance of one provider of the overpriced «certified systems and services» or in the necessity of establishing friendly, but not free of charge relations with the inspectors. Another problem is the software for the monitoring system, which contents are unknown, but in which one must confide, since it was created by «honest people». I believe that the hardware, which is mounted in the providing companies, should have the unified computer base, which can be bought anywhere. The software must have the open code, from which the algorithm of the monitoring should be comprehensible. The checksum of the compiled code should be accessible from outside for tracing the uncertified access.
I want to point out that the access should be provided to the source code of the software and the checksum, but not to the identification codes of subscribers, service data or the contents of the communication sessions (terminology of the law draft). This will not impede the competent organs to conduct the legal monitoring, but this will create the opportunity to other, not less competent, organs to control the use of the monitoring systems and to protect the rights of «the objects of monitoring».
5. ECONOMIC ASPECTS OF THE MONITORING
I reckon that the introduction of the monitoring systems is economically expedient only for great providing companies, who have thousands or ten of thousands of customers. It is senseless to install the expensive monitoring systems in the local networks, in small providing companies, at village telephone stations, etc. It is quite enough to use in such cases the existing practice of obtaining information from the operator (provider). By the way, we do not know about any attempt of a Ukrainian operator or provider to disobey the legal demand of the competent organs connected with obtaining this information.
Such practice will liquidate the financial problem – the cost of the monitoring system is not very onerous for a great providing company, but the attempts to introduce the monitoring in small networks will hamper the development of telecommunications in the remote and sparsely populated districts.
The draft must be analyzed more thoroughly, but even now I think that the Ukrainian Internet Association should turn to the committees and fractions of the Supreme Rada with the following propositions:
- to reject the draft of the law «On the monitoring of telecommunications» presented by the Cabinet of Ministers and to direct the draft for the revision;
- to create (a) transparent, (b) open and (c) competent deliberative organ of the Supreme Rada in charge of the questions of information and telecommunications; representatives of the real business circles and the real public organizations (and not «tame» ones) should take part in the work of this organ.