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Georgian President Bows To Constitutional Court Ruling On Controversial Bill On Electronic Surveillance

  • Liz Fuller

Georgian President Giorgi Margvelashvili has consistently sought to block successive bills drafted by his own party.

On March 27, Georgian President Giorgi Margvelashvili signed into law a package of legislation intended to formalize mechanisms to preclude abuse of the technical capacity to monitor and record electronic communications for security purposes, and which he had vetoed one week earlier.

The Georgian parliament promptly overturned that veto, whereupon the Constitutional Court rejected Margvelashvili's rationale that certain provisions of the various bills are unconstitutional. Margvelashvili refuses to admit defeat, however: according to his parliamentary secretary Ana Dolidze, he will continue to liaise with those groups that are determined to have the law amended.

The ruling Georgian Dream coalition inherited a toxic legacy when it came to power in late 2012: thousands of illicit recordings made by the security services under the previous government. Accordingly, one of the priorities of the new parliament was the passage of legislation that would put an end to that practice. The standoff between Margvelashvili and the parliament, in which Georgian Dream has a constitutional majority, focuses primarily on how to guarantee the independence of the agency responsible for conducting electronic eavesdropping.

The signing of the legislative package marks the culmination of almost three years of disagreement during which Margvelashvili has consistently sought to block successive bills drafted by Georgian Dream. In May 2014, the Georgian parliament passed in the first reading a package of bills intensifying the oversight of electronic surveillance by the Interior Ministry, which under former President Mikheil Saakashvili is widely believed to have routinely violated the law in its surveillance and harassment of suspected political opponents. That package nonetheless preserved the security services' unfettered access to telecommunications service providers' networks.

Georgian Public Defender Ucha Nanuashvili appealed that provision in the Constitutional Court as incompatible with the right to inviolability of private life. At the same time, a group of NGOs including the Georgian Young Lawyers Association and Transparency International -- Georgia drafted an alternative bill stripping the Interior Ministry of its right of access to telecom operators' servers and introducing a so-called "two-key system" under which that right of access would separately be granted by the telecoms operators themselves and by the judiciary.

Professor of information policy and technology law Joseph Canatacci, who advised on the drafting of that alternative bill, was quoted by the news portal Civil.ge as saying that while such a model was not a 100 percent guarantee against unauthorized phone-tapping, it was better than the existing system. He explained that "there should be more than one 'key'; the second key should be held by somebody else other than the Ministry of Interior, and the second key should be used [for] a verification of the judicial warrant. So the way the system would work is: when a judicial warrant is issued, authorizing surveillance, then the Ministry of Interior uses its first key and then the second ['key' holder] institution -- that could be a private [telecom] service provider, or an oversight agency -- would use the second 'key."'

Then-Georgian Prime Minister Irakli Garibashvili, himself a former interior minister, nonetheless opposed that model on the grounds that Georgia's three largest telecoms operators are all foreign-owned and to empower them to grant access posed an unnecessary threat to national security.

Parliament duly voted in late October 2014 to extend until February 28, 2015, the deadline for deciding on the access question. It then came up with an amended bill incorporating the "two-key" proposal, with one "key" being activated by the Interior Ministry and the second by the Personal Data Protection Inspector's office.

Parliament passed that bill in the first reading in late November 2014, voting down an alternative model drafted by the Republican Party (a member of the Georgian Dream coalition) under which the second "key" would have been held by the Georgian National Communication Commission, instead of the data-protection authority. Margvelashvili promptly vetoed the government-sponsored bill, but lawmakers overrode his veto on November 30.

In response to Nanuashvili's appeal and a second one by NGOs, the Constitutional Court ruled in April 2016 that preserving the Interior Ministry's unrestricted access to telecoms operators' networks was indeed unconstitutional. The court therefore called on the legislature to draft new surveillance regulations by March 31, 2017.

It was only in January 2017, however, that the parliament established an ad hoc working group , which included representatives of the NGOs that had lobbied against the existing model, that was tasked with doing so. Contrary to the United National Movement's prediction that Georgian Dream would never condone depriving the Interior Ministry of its surveillance function, that working group duly proposed establishing a new Operative-Technical Agency subordinate to the State Security Service. That new agency would be empowered to monitor telephone and Internet communications and to conduct audio and video surveillance. Its head would be appointed by the prime minister, and the parliament, the Supreme Court, the Personal Data Protection Office and the Prosecutor-General's Office would jointly oversee its operations.

The NGOs continued, however, to argue that the new proposal did not meet the Constitutional Court's stipulation insofar as the new agency would not be independent, but subordinate to the State Security Service. Disregarding that criticism, parliament passed the package of draft laws on March 1 by a vote of 87 in favor and two against.

Following consultations in early March with the three opposition parliament factions (the Alliance of Patriots and the two groups into which the United National Movement parliament deputies split late last year), Margvelashvili announced he would veto the bills. His objections, as set out in a 164-page document, focused on two key points. First, he argued that counter to the Constitutional Court's requirement, the new Operative Technical Agency will not be independent, insofar as it will be subordinate to the State Security Service. He therefore proposed it should be subordinate to the prime minister -- although it is not clear how that would guarantee its greater independence. And second, he claimed that the provisions will impose an "unjustified" considerable financial burden on the telecom operators which would be required to pay for installation of the requisite equipment.

Those objections angered some Georgian Dream lawmakers. Vano Zardiashvili advised fellow lawmakers to ignore what he termed "a veto simply for the sake of vetoing," while Eka Beselia, who headed the ad hoc working group that authored the new wording of the bill incorporating the third "key," asked Dolidze outright whether or not Margvelashvili trusted the State Security Service and the Personal Data Protection Inspector, and whether he considered legal the outcome of the October 2016 parliamentary ballot, InterpressNews reported on March 21.

The overturning of the presidential veto by a vote of 86 in favor and 22 against, and Margvelashvili's subsequent signing of the bill, do not signify the end of the legal battle, however. Transparency International -- Georgia's executive director, Eka Gigauri, has already announced her intention to appeal the law to the Constitutional Court and then, if need be, to the European Court of Human Rights in Strasbourg.

The views expressed in this blog post do not necessarily reflect those of RFE/RL

About This Blog

This blog presents analyst Liz Fuller's personal take on events in the region, following on from her work in the "RFE/RL Caucasus Report." It also aims, to borrow a metaphor from Tom de Waal, to act as a smoke detector, focusing attention on potential conflict situations and crises throughout the region. The views are the author's own and do not represent those of RFE/RL.

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