On 31 October 2014, during his visit to the talkshow Reaction,

Prime Minister of Georgia, Irakli Gharibashvili, made a statement about telecommunications surveillance: “You would be unable to name a single instance when the so-called ‘key’ of telecommunications surveillance is owned by overseas companies.”

FactCheck

took interest in this statement and verified its accuracy.

The issue of telecommunications surveillance has been keenly discussed by the public in recent months. The This Concerns You, They Are Still Listening to Us campaign is also running in relation to this issue.

Non-governmental organisations support the existence of two so-called keys. According to this model, the listening to and recording of a conversation will only be possible if the Ministry of Internal Affairs obtains the permission of both the mobile telephone network operator and the court. The NGOs stated: "The dominance of the Ministry of Internal Affairs in terms of telecommunications surveillance must end. It will retain full power of telecommunications surveillance until the server is removed from this structure."

An expert of the Council of Europe, Joseph Kanatach, made a statement about the issue: "The second ‘key’ must be kept somewhere else and it must not be in the hands of the Ministry of Internal Affairs. The second ‘key’ must be used for verification when the court gives the Ministry permission to use its own ‘key’ for telecommunications surveillance. The structure keeping the second ‘key’ must be able to check the validity of the permit. This structure might be a private provider or a special monitoring agency."

Three bills were formulated about the issue of telecommunications surveillance:

• The first was formulated by Eka Beselia, Gedevan Popkhadze and Irakli Sesiashvili and it included the enactment of the so-called “two-key system.” One of the so-called keys would remain with the Ministry of Internal Affairs of Georgia whilst the second would be given to the Personal Data Protection Inspector (this version of the bill was adopted by the Parliament on 30 November 2014).
• The second version of the bill was registered by Vakhtang Khmaladze and it proposed granting the key to the Georgian National Communications Commission (a total of 61 MPs supported the bill whilst 71 voted against it).
• The third version was formulated by the NGOs and it was not considered by the Parliament.

On 30 November 2014, the Parliament of Georgia overrode a Presidential veto on the first version of the bill and adopted the amendments to the Criminal Procedure Code of Georgia and the Laws on Personal Data Protection and Electronic Communications of Georgia.

Major changes were made to the monitoring system; specifically, a two-stage electronic system of covert investigative measures was implemented which must exclude the possibility of using telecommunications surveillance by law enforcement structures without the electronic consent of the Personal Data Protection Inspector.

The main “black-box” (surveillance system) stays with the Ministry of Internal Affairs of Georgia; however, it is illegal to use it without the consent of the Personal Data Protection Inspector. The surveillance is performed by the Operative-Technical Department of the Ministry of Internal Affairs of Georgia. We were told by Transparency International – Georgia that including the Personal Data Protection Inspector will not improve the situation; furthermore, the Inspector participates in the process and the system remains outside of the sphere of external control.

The NGOs have estimated this new law as a “step back” and an attempt to delude the public as the Ministry of Internal Affairs still retains the so-called key. In addition, according to them, the law says nothing about using the two “keys” in terms of an emergency. This means that the Ministry can still perform telecommunications surveillance without the Personal Data Protection Inspector. Furthermore, the “two-key system” includes only the covert surveillance and recording of telecommunications whilst the identification data (time, place and duration of the call) and internet traffic (including the content of the communication) is available to the Ministry of Internal Affairs without any control or two keys. On 19 December 2014, the NGOs organised a protest against the new law on covert telecommunications surveillance.

As for the practice of the European Union member states, mobile telephone network operators retain

the “keys” in most of them. These countries employ the so-called two-key system and the telecommunications companies retain full control of the data. They participate in surveillance only in terms of an appropriate court permit. For example:

France

In France the telecommunications companies are obligated to the keep communications data for a year. These companies are also obligated to cooperate with appropriate structures in covert surveillance in the case of a court permit.

There are three main mobile telephone network operators in France:

• SFR – owned by the French Vivendi Company.
• Bouygues Telecom – founded and owned by the French Bouygues family.
• Orange– currently owned by the French France Telecom Company (previously owned by the United Kingdom). Orange operates in many countries around the world.

Germany

The telecommunications companies in Germany are obligated to have the technical and organisational ability to perform surveillance in accordance with the law.

There are four main mobile telephone network operators in Germany:

• T-Mobil – owned by the German Deutsche Telekom Company. T-Mobil operates in both European countries and the United States of America.
• Vodafone – owned by the British Vodafone Group.
• E-Plus – owned by the Spanish Telefónica Company.
• O2 – owned by the British English Partnerships (ultimate owner of Dome and Land).

Greece

In Greece the telecommunications companies are obligated to retain data of the communications (so-called traffic data), data about location and other important data necessary for identifying the user. The companies are obligated to hand over the requested data to appropriate structures based upon a court decision or a permit.

There are three main mobile telephone network operators in Greece:

• Wind – owned by the Italian Wind Telecomunicazioni SPA.
• Vodafone – owned by the British Vodafone Group.
• Cosmote – owned by the Greek OTE Company.

We addressed Transparency International – Georgia, asking about the dangers of handing the so-called key over to the mobile telephone network operator companies. According to them, the security of the country will not be compromised by removing the “black box” from the Ministry of Internal Affairs. Giving the ‘key’ to the operators does not mean that they will have direct access to the content of the communications and can record the conversations themselves. They will only be authorised to give permission for surveillance to the Ministry of Internal Affairs. In addition, the risk of the companies’ performing covert telecommunications surveillance is very low; in fact, zero (no examples so far) as the sanctions on illegal surveillance in European countries are very strict (criminal punishment, liquidation of legal entity).

Conclusion

The so-called ‘key’ is in the hands of mobile telephone network operator companies in a number of European countries (for example, Germany, France and Greece). It should also be noted that the owners of the majority of the main mobile telephone network operators in the aforementioned countries (Germany and Greece) are overseas companies.

The context of the Prime Minister’s statement should also be taken into account. According to him, handing over the ‘key’ to overseas telecommunications companies will compromise the security of the country. As pointed out earlier, the mobile telephone network providers in European countries do not actually perform covert telecommunications surveillance without the appropriate permit from a state structure as the sanctions on illegal surveillance are extremely severe and could lead to criminal charges of liquidation of legal entity. According to Transparency International – Georgia, no such instances have been observed in European practice so far.

FactCheck concludes that the Prime Minister’s statement: "You would be unable to name a single instance when the so-called key of telecommunications surveillance is owned by overseas companies," is FALSE.