PM Irakli Garibashvili spoke on October 30 strongly against of depriving the Interior Ministry of its direct access to telecommunication operators’ network systems – a proposal pushed for by civil society groups, who say that keeping this capability in security agencies’ hands would mean continuation of illegal surveillance practice.

Although the Parliament passed this summer package of legislative amendments setting tighter rules for the law enforcement agencies to carry out surveillance activities, legislators left unaddressed security agencies’ current unrestricted capabilities of direct access to telecommunications service providers’ networks. The law set November 1, 2014 as a deadline for adopting legislative amendments to tackle this issue and set a working group with participation of MPs, government and civil society representatives to elaborate the bill. But it failed to produce the bill and as the deadline approached it was offered to extend the deadline till April 1, 2015 – a proposal opposed by civil society groups and some MPs from Georgian Dream ruling coalition as well, among them by lawmakers from Free Democrats party. 

Debates center on the issue of who should have direct access – or ‘key’ as it has been dubbed – to telecommunication service providers’ servers.

The Interior Ministry, backed by the PM, argues that it should retain this ‘key’ to direct access and the office of personal data protection inspector should be empowered, including through technical means, to provide oversight on the security agencies’ use of this capability.

Civil society organizations, among them Georgian Young Lawyers’ Association and Transparency International Georgia, which were engaged in the activities of the working group, established by the Parliament, have tabled a bill according to which the Interior Ministry should be deprived of direct access to telecom operators’ services and so called “two-key system” should be introduced, wherein one ‘key’ will be held by telecom operators themselves and another one by the judiciary; this latter, according to this proposal, will on the one hand decide whether to issue warrant on security agencies’ request for surveillance and in case of approval will also technically authorize telecom operators to carry out eavesdropping upon law enforcement agencies’ request. The proposal, according to this bill tabled by the civil society groups, will have to go into force from January, 2016; before that the Interior Ministry will retain its unrestricted direct access to telecom operators’ servers.

“It is a bit incomprehensible for me the approach adhered by non-governmental organizations, as well as from our team members,” PM Garibashvili said referring to some GD lawmakers, who said that they would not support extending the deadline for five months.
 
The PM said that proposal offered by the NGOs is “directly fraught with risks and threats for the state security.”

He said he is against of giving ‘keys’ to telecom operator companies and to the judiciary.
 
The PM said that all three largest mobile phone operator companies in Georgia are foreign owned and “the state cannot rely on foreign companies when it comes to state security and citizens’ security.”

He also said that the law enforcement agencies have “quite complicated relations” with the judiciary.

“Very often they have whole set of obstacles from the judiciary, because often they cannot obtain warrant [for surveillance] even in simple and strongly justified cases. Therefore I think it will cause a complete collapse and the system will become paralyzed” if the proposal by the civil society groups is adopted, PM Garibashvili said.

“It’s complete hysteria about [this issue]. I want to ask citizens what do we prefer – to keep this ‘key’ in hands of the law enforcement agencies and impose oversight on them or to give it to foreign companies and the judiciary?” he said.

Garibashvili also said that adoption of amendments “hastily” that would give one ‘key’ to telecom service providers and another one to the judiciary “is destructive” and “a step taken against the state.”

“I request everyone, I call on everyone to think twice,” he said. “All these ideas are good, but it has to be well realized, especially taking into account that we live in a difficult region and the country faces difficult challenges. Penalization of the entire law enforcement structures would mean sabotaging the entire country,” he said and called on the lawmakers from both the parliamentary majority and minority groups to think over this issue and take “decision reasonably.”
 
Proposal on ‘two-key system’ was first floated in late September when the working group held a conference in Tbilisi with participation of European experts on personal data protection, who were invited by the Council of Europe (CoE) to provide their expertise.

After that conference, one of the invited experts, Joseph Cannataci, a professor of information policy and technology law, said on September 25 that the Interior Ministry’s proposal to retain direct access but introduce oversight mechanism was “a step in the right direction”, but it was “incomplete step” which should only serve as an interim measure before comprehensive solution was introduced. 
 
“Will it be an efficient way to avoid [unauthorized] interception? My answer is clearly no – it cannot guarantee that, because in fact no system can guarantee that. Will it be an improvement on the current position? Yes. Should it be done as soon as possible? Yes. Should it be a one-key system? Most probably no and our clear advice to the Parliament of Georgia has been that while the proposal of the Ministry of Interior is a step in the right direction, it is an incomplete step and therefore it should be adopted only as an interim solution – something to do over the next few weeks or months while you study the introduction of a new solution,” he said.

“The recommendation is clear – 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 second ‘key’ to authorize [surveillance] after first ascertained that the [judicial] warrant exists,” Cannataci said.

Under this system, the existence of two ‘keys’ does not mean that their holder institutions would be able to separately gain access. It means that the Interior Ministry cannot alone gain access and the other key would be needed to complement the first ‘key’ held by the ministry.