10 June 2001
ECHELON Violates Human Rights Treaties
Echelon system identified as "legislation-free zone"
From: Nizkor English Service <eng@equiponizkor.org>

(2 Items)

1. THE ECHELON COMMITTEE OF THE EUROPEAN PARLIAMENT FOUND THAT US INTELLIGENCE, AND THE UK AND GERMANY THROUGH THEIR SURVEILLANCE STATIONS LINKED TO THE NSA VIOLATE HUMAN RIGHTS TREATIES AND CALLS FOR PARLIAMENTARY OVERSIGHT OF SURVEILLANCE.

In a major report to be published this week, the Echelon committee of the European Parliament has found that the conduct of electronic surveillance activities by US intelligence breaches the European Convention of Human Rights even when conducted, allegedly, for law enforcement purposes. It concludes that if the British and German governments fail to prevent the improper use of surveillance stations sited on their territory to intercept private and commercial communications, they may be in breach both of community law and of human rights treaties.

Two drafts of the proposed EP report, prepared by rapporteur and MEP Gerhard Schmidt, were leaked earlier this month. The form and wording of the committee's final report is due to be settled by the full committee in a meeting in Brussels on Tuesday 29 May.

Comparison of the two drafts shows that the committee was waiting to question American government and trade officials about their use of economic intelligence before making its final comments. But, two weeks ago, the American government decided to snub them after members had already arrived in Washington, abruptly cancelling a series of planned meetings.

The declared policy of the US government, as explained last year by former CIA director James Woolsey, is to use the U.S. intelligence system spy on European companies in order to gather evidence of bribery and unfair trade practices. Woolsey said "Yes, my continental European friends, we have spied on you. And it's true that we use computers to sort through data by using keywords". "We have spied on you because you bribe", he wrote in the Wall Street Journal [http://cryptome.org/echelon-cia2.htm].

US economic intelligence policies in support of business and trade were exposed four months ago in a detailed new report to the Echelon committee. That report on "COMINT impact on international trade" [http://www.heise.de/tp/deutsch/special/ech/7752/1.html] is published here exclusively for the first time today. The report traces in detail how U.S. intelligence gathering priorities shifted dramatically after the end of the Cold War, with the result that "about 40 percent of the requirements" of U.S. intelligence collection became "economic, either in part or in whole".

The new priorities for economic intelligence were approved by the first President Bush in a document called NSD-67 (National Security Directive 67), issued by the White House on 20 March 1992. By using the CIA and NSA to spy on foreign rivals of American companies, the declared U.S. objective was to "level the playing field" in foreign trade.

After the new policies came into force, the incoming Clinton administration set up a new Trade Promotion co-ordinating committee, with direct intelligence inputs from the CIA and direct links to U.S. business through a new "Advocacy Center". Intelligence from NSA and CIA was supplied to the U.S. government department of Commerce through an "Office of Intelligence Liasion", which was equipped to handle intercepted communications such as those supplied by the Echelon
network.

According to documents provided to the Echelon Committee and now published here, the CIA team in the Commerce Department proposed gathering information on "primary competitors" of American business in a major Asian market. One document shows that, of 16 U.S. government officials attending a meeting on winning contracts in Indonesia, 5 were from the CIA (see Annexe 2-3 [http://www.heise.de/tp/deutsch/special/ech/7744/1.html ]).

Two of the NSA's largest electronic intelligence stations are located at Bad Aibling, Bavaria and Menwith Hill, in England. Both stations intercept satellite communications and use surveillance satellites to collect communications from the ground, anywhere in the western hemisphere.

The U.S. congress was recently told that, as a result of "levelling the playing field", American companies gained $145 billion worth of business during the 1990s, after intelligence agencies claimed to have detected and defeated bribery or unfair conduct by foreign competitors. Many such contracts were listed in dossiers of cases publicised during the 1990s.

According to reports of "success stories" published by the Advocacy Center, European countries have lost out massively. France lost nearly $17 billion dollars worth of trade, and Germany $4 billion out of a total of about $40 billion. Sweden lost $386 million worth of business, the Netherlands $184 million. Not all "successes" necessarily involved allegations of bribery, but many did.

Despite the huge number of cases in which it claims to have detected bribery, the U.S. government has never published any evidence to substantiate its claims. Nor has it instigated any prosecutions. Equally hard to substantiate has been evidence in specific cases where secret interception activities are alleged to have affected a major contract. All of the specific accounts of European business losses, such as the lost of an $8 billion Airbus contract in 1994, were published by the American press, at a time when the Clinton administration wanted to publicise that it was doing its best for business.

The clear motive was to tell the Americans that their government and intelligence agencies were now helping with the economy. But when Europe became concerned about the Echelon system, such stories stopped appearing in the U.S. media, and information dried up.

Many MEPs suspect that the American claim only to use their secret listening systems, including the Echelon network, to prevent bribery are a smoke screen to cover straightforward spying for business and trade purposes.

The report on "COMINT impact on international trade" sets out, with many detailed sources, the case that from 1992 to date Europe is likely to have sustained significant employment and financial loss as a result of the U.S. government policy of "levelling the playing field". The report does not address whether the U.S. position that such interventions were and are justified by corrupt and or unfair behaviour by foreign competitors or governments are reasonable or, in fact, are true.

But it is not necessary to show that intelligence information has been given directly to U.S. corporations for major economic damage to be assessed to have occurred. The boundaries of such estimates could lie between $13 billion and $145 billion. The only certain observation is that the exact figure will never be known.

Although failing to find new reports of European business losses beyond those appearing in the American media in 1994-1996, the Echelon committee has found that even if it were proven that bribery was involved, this does not make NSA activities of this kind legal in Europe. The draft report points out that:

"The American authorities have repeatedly tried to justify the interception of telecommunications by accusing the European authorities of corruption and taking bribes. It should be pointed out to the Americans that all EU Member States have properly functioning criminal justice systems. If there is evidence that crimes have been committed, the USA must leave the task of law enforcement to the host countries. If there is no such evidence, surveillance must be regarded as unproportional, a violation of human rights and thus inadmissible."

Just a week ago, former CIA director Woolsey repeated his claims of European bribery at a meeting in New York. In the context of any such activities conducted at NSA's British and German stations, this now appears to be an admission of unlawful conduct.

According to the draft report, "under the terms of the ECHR, interference in the exercise of the right to privacy must be proportional and, in addition, the least invasive methods must be chosen. As far as European citizens are concerned, an operation constituting interference carried out by a European intelligence service must be regarded as less serious than one conducted by an American intelligence service".

Not least, this is because European citizens or companies could only get legal redress for such misconduct in national courts, not American courts.

"Operations constituting interference must therefore be carried out, as far as possible, by the German or UK authorities, particularly when investigations are being conducted for law enforcement."

The draft committee report concludes that "there would seem to be good reason ... to call on Germany and the United Kingdom to take their obligations under the ECHR seriously and to make the authorisation of further intelligence activities by the NSA on their territory contingent on compliance with the ECHR".

THE IC2001 PAPERS

Four new studies on "Interception Capabilities - Impact and Exploitation" were commissioned by the Temporary Committee on the Echelon Interception System of the European Parliament in December 2000. The new studies update and extend the previous EP report, "Interception Capabilities 2000" [http://www.europarl.eu.int/stoa/publi/pdf/98-14-01-2en_en.pdf], which was prepared in 1999. They cover the use of communications intelligence (COMINT) for economic purposes, legal and human rights issues, and recent political and technological developments. Among the key topics covered are the documentary and factual evidence for the existence of the COMSAT (communications satellite) intercept system known as "ECHELON".

These studies were presented to the Echelon Committee at its Brussels meeting on 22 and 23 January 2001. The fourth study, on new political and technical developments, was presented only in the form of a slideshow. These studies are published with permission from the secretariat of the Echelon Committee.

ECHELON AND ITS ROLE IN COMINT
IC2001, paper 1
[http://www.heise.de/tp/deutsch/special/ech/7747/1.html]

This paper summarises the evidence for the existence of ECHELON as a global interception system. It records official admissions about the secret UKUSA agreement that links English-speaking signals intelligence organisations. The paper also provides detailed answers to questions put by the Committee. It points out that very few media reports have provided original new information about Echelon, and that many press reports have enlarged on the nature of the interception systems and their capabilities, without evidence.

COMINT IMPACT ON INTERNATIONAL TRADE
IC2001, paper 2
[http://www.heise.de/tp/deutsch/special/ech/7752/1.html]

Paper 2 sets out, with detailed sources, the case that from 1992 to date Europe is likely to have sustained significant employment and financial loss as a result of the U.S. government policy of "levelling the playing field", introduced in 1991. It also refers to:

Annexe 2-1 [http://www.heise.de/tp/deutsch/special/ech/7743/1.html]
Background papers about the U.S. Trade Promotion Co-ordinating Committee (TPCC) and the Advocacy Center, including statements of purpose

Annexe 2-2 [http://www.heise.de/tp/deutsch/special/ech/7744/1.html]
A questionaire for U.S. companies to answer in order to determine whether or not they are deemed "American" and thus qualify for official assistance. The questionnaire is also on the internet [http://www.ita.doc.gov/td/advocacy/question.htm].

Annexe 2-3 [http://www.heise.de/tp/deutsch/special/ech/7749/1.html]
Documents revealing the CIA's role in U.S. trade promotion, obtained under the Freedom of Information Act.

Annexe 2-4 [http://www.heise.de/tp/deutsch/special/ech/7796/1.html]
U.S. trade "Success stories" affecting Europe - financial and geographical analysis Many of the stories can be viewed online [http://www.ita.doc.gov/td/advocacy/advosucc.htm] For example, this report [http://www.ita.doc.gov/td/advocacy/Enronin1.htm] concerns the controversial power plant at Dabhol, India.

COMINT, PRIVACY AND HUMAN RIGHTS
IC2001, paper 3 [http://www.heise.de/tp/deutsch/special/ech/7748/1.html]

This paper reveals that Britain undertakes to protect the rights of Americans, Canadians and Australians against interception that would not comply with their own domestic law, while offering no protection of any kind to other Europeans. This and other background papers provided to the Echelon committee have prompted them to observe that "possible threats to privacy and to businesses posed by a system of the ECHELON type arise not only from the fact that is a particularly powerful monitoring system, but also that it operates in a largely legislation-free area."

OTHER REPORTS

The committee were also given copies of three key articles about US intelligence and economic activity:

"Why We Spy on Our Allies" [http://cryptome.org/echelon-cia2.htm], by James Woolsey, former director of the CIA, Wall Street Journal, 17 March 2000.

"It's true that we use computers to sort through data by using keywords. Have you stopped to ask yourselves what we're looking for?"

"U.S. spying pays off for business" by Bob Windrem, NBC News Online, 15 April 2000 Originally published at MSNBC [http://www.msnbc.com/news/394993.asp] This link is broken, but an alternative copy is here [http://www.dei.uc.pt/majordomo/sociedade/msg01132.html] and on other sites.

"U.S. companies have benefited when U.S. intelligence redirected its Cold War assets towards economic intelligence."

" U.S. steps up commercial spying [http://www.msnbc.com/news/403435.asp] - Washington gives companies an advantage in information", by Bob Windrem, NBC News Online, 7 May 2000. Again, the link has recently been broken, but an alternative copy is at http://www.gn.apc.org/cndyorks/caab/articles/spying.htm

"Documents, all published during the Clinton administration, appear to confirm reports that America's electronic eavesdropping apparatus was involved in commercial espionage."

[Source: Article by Duncan Campbell - 27May01. Available at: http://www.heise.de/tp/english/inhalt/te/7753/1.html]

2. PRESS RELEASE: THE ASSOCIATION FOR PROGRESSIVE COMMUNICATIONS EUROPE INTERNET RIGHTS INITIATIVE WELCOMES EUROPEAN PARLIAMENT DRAFT REPORT ON ECHELON.

LONDON, UK -- The Association for Progressive Communications Europe Internet Rights Initiative wholeheartedly welcomes the Draft Report of the European Parliament's Temporary Committee on Echelon [http://www.europarl.eu.int/tempcom/echelon/prechelon_en.htm]. We congratulate the Committee and particularly its Rapporteur, Gerhard Schmid on the excellent job they have done.

The Report:

1) Firmly establishes that Echelon exists. This represents a major triumph for campaigners like Duncan Campbell [http://www.gn.apc.org/duncan/stoa.htm] and Nicky Hager, who have untiringly sought to expose Echelon to the world, whilst governments have tried to deny its existence.

2) Questions the compatibility of Echelon with existing European Union law and, in particular, whether the United Kingdom's involvement in Echelon is compatible with its membership of the European Union (EU). At the Echelon Committee meeting on Tuesday, a representative of the
Swedish EU Presidency conceded that, as a result of the Report, the European Council might have to take action against the UK government.

3) Expresses the belief that Echelon is a violation of the fundamental right to privacy as defined under Article 8 of the European Convention on Human Rights [http://www.humanrights.coe.int/intro/eng/GENERAL/ECHR.HTM] and Article 7 of the Charter of Fundamental Rights of the EU [http://www.europarl.eu.int/charter/default_en.htm]. At the same
time, the Report calls for these Articles to be "brought in line with modern communication and interception methods".

4) Calls for "a common level of protection against intelligence operations based on the highest level which exists in any member state". The Committee is particularly critical of the situation in the UK and some other member states where there is no parliamentary oversight of surveillance. It calls for national parliaments to set up "specific, formally structured monitoring committees responsible for supervising and scrutinising the activities of the intelligence services."

5) Calls for the development and promotion of European "user-friendly open-source encryption software". The Report says it wants "encryption to become the norm".

6) Calls for the European Parliament to hold an international congress for NGOs from Europe, the USA and other countries to provide a forum on the protection of privacy against telecommunications surveillance.

APC Europe strongly supports the Committee on all these points. Its findings are a powerful rebuff to attempts by the UK Home Office, apparently endorsed by EuroISPA (the European Internet Service Providers' Association) at its recent conference "Future Trends in Internet Security" [http://www.euroispaconference.org/], to present the UK as a model to be emulated by the rest of Europe. On the contrary, although the remit of the Echelon Committee only covered military interception of communications and not police operations, the Committee's findings make clear that they regard the surveillance situation as a whole in the UK as incompatible with proper democratic standards. Many members of the Committee are calling for further investigations to cover police surveillance across the EU.

APC has itself worked to expose Echelon. Last year we organised, through our member in Japan, JCA-NET, a series of presentations on Echelon given by Duncan Campbell, including at the Japanese Parliament (Diet) and the Japanese Bar Association. Following this, a representative of APC was invited to give a presentation on Echelon at the People's Forum in South Korea, an important forum in a new dialogue between Asia and Europe, that took place in parallel with last year's Asia-Europe meeting of prominent Asian and EU governments (ASEM 2000).

APC particularly welcomes the recognition by the Echelon Committee that the Internet and other modern forms of communication create whole new areas where it is necessary to ensure human rights in line with rights ensured for other traditional forms of communication, such as the
printed word. This view was forcibly put to the Committee at its Tuesday meeting by Finnish Member of the European Parliament (MEP) Reino Paasilinna. It was vital for protecting democracy that we clearly define privacy rights in the new communications technologies, he maintained, or we would have a situation where every move individuals made would be monitored. He considered this would be equivalent to reading our thoughts. He felt sure that criminals would undoubtedly find ways of avoiding such surveillance and that in the meantime it was ordinary citizens that needed protection.

The work of the APC Europe Internet Rights Initiative [http://www.apc.org/english/rights] is based on the issues raised by Paasilinna and the Echelon Committee over defining human rights in the new communications media, particularly the Internet. Unless this is done, the Internet, which holds such enormous potential for increasing democracy could be transformed into the highly monitored and state-controlled nightmare scenario that Paasalinna outlined.

APC believes it is necessary to incorporate specific rights of privacy, as well as access, freedom of expression and rights awareness regarding the Internet and other new information technologies into the Charter of Fundamental Rights of the EU. At the same time, we strongly support the European Trade Union Committee and the Platform of Social NGOs in calling for the Charter to be made legally binding in all EU Member states. As a contribution to this critical debate, APC has developed an Internet Rights Charter [http://www.apc.org/english/rights/charter.htm] outlining seven major Internet Rights themes and welcomes comment and discussion on any aspect of the charter.

The Echelon Committee has made an excellent start in the work of defining the privacy rights of EU citizens in the new communications technologies. We look forward to its final report and hope that it will receive the full support of the European Parliament as a whole.

ABOUT ECHELON

The Echelon system (reportedly run by the United States in cooperation with Britain, Canada, Australia and New Zealand) was set up at the beginning of the Cold War for intelligence gathering and has developed into a network of intercept stations around the world. Its primary
purpose, according to the Draft Report of the European Parliament's Temporary Committee on Echelon, is to intercept private and commercial communications, not military intelligence. The committee concludes that "the existence of a global system for intercepting communications . . .
is no longer in doubt."

In addition to Duncan Campbells's piece, a report on ECHELON written by Chris Bailey in 1999 for the Labor Media Conference, Seoul is available at: http://lmedia.nodong.net/1999/archive/e25.htm 

(...)

[Source: Association for Progressive Communications Europe (APC Europe)
Press Release - 31May01]

FOR FURTHER INFORMATION
Karen Banks
APC European Civil Society Internet Rights Initiative Project Manager
GreenNet
4th Floor - 74-77 White Lion Street - London N1 9PF - U.K.
Email: karenb@gn.apc.org
Tel: +44 207 713 1941
Fax: +44 207 837 5551

3. MOTION FOR A RESOLUTION.

European Parliament resolution on the existence of a global system for the interception of private and commercial communications (ECHELON interception system)

The European Parliament,

• having regard to Parliament's decision of 5 July 2000 to set up a Temporary Committee on the ECHELON Interception System and the mandate issued to the Temporary Committee,
  
• having regard to the EC Treaty, one objective of which is the establishment of a common market with a high level of competitiveness,
  
• having regard to the Treaty on European Union, in particular Article 6(2) thereof, which lays down the requirement that the EU must respect fundamental rights, and Title V thereof, which sets out provisions governing the common foreign and security policy,
  
• having regard to the Charter of Fundamental Rights of the EU, Article 7 of which lays down the right to respect for private and family life and explicitly enshrines the right to respect for communications,
  
• having regard to the European Convention on Human Rights (ECHR), in particular Article 8 thereof, which governs the protection of private life, and the many other international conventions which provide for the protection of privacy,
  
• having regard to the report on the existence of a global system for the interception of private and commercial communications (ECHELON interception system) drawn up by the Temporary Committee on the ECHELON Interception System (A5-..../2001),
  
  THE EXISTENCE OF A GLOBAL SYSTEM FOR INTERCEPTING PRIVATE AND COMMERCIAL COMMUNICATIONS (THE ECHELON INTERCEPTION SYSTEM)

1. Calls on the Secretary-General of the Council of Europe to submit to the Ministerial Committee an analysis of whether the protection of private life guaranteed in Article 8 of the ECHR should be brought into line with modern communication and interception methods by means of an additional protocol or, together with the provisions governing data protection, as part of a revision of the Convention on Data Protection, with the proviso that this should neither undermine the level of legal protection established by the European Court of Human Rights nor reduce the flexibility which is vital if future developments are to be taken into account;
   
2. Calls on the Member States to establish a European platform in order to review the legal provisions guaranteeing postal and communications secrecy and, in addition, to reach agreement on a joint text which affords all European citizens, throughout the territory of the Member States, protection of privacy as defined in Article 7 of the Charter of Fundamental Rights of the European Union and which, moreover, guarantees that the activities of intelligence services are carried out in a manner consistent with fundamental rights, in keeping with the conditions set out in Chapter 8 of this report, and in particular Section 8.3.4., as derived from Article 8 of the ECHR;
   
3. Calls on the member countries of the Council of Europe to adopt an additional protocol which enables the European Communities to accede to the ECHR or to consider other measures designed to prevent disputes relating to case law arising between the European Court of Human Rights and the Court of Justice of the European Communities;
   
4. Calls on the UN Secretary-General to instruct the competent committee to put forward proposals designed to bring Article 17 of the International Covenant on Civil and Political Rights, which guarantees the protection of privacy, into line with technical innovations;
   
5. Calls on the USA to sign the Additional Protocol to the International Covenant on Civil and Political Rights, so that complaints by individuals concerning breaches of the Covenant by the USA can be submitted to the Human Rights Committee set up under the Covenant; calls on the relevant American NGOs, in particular the ACLU (American Civil Liberties Union) and the EPIC (Electronic Privacy Information Center), to exert pressure on the US Administration to that end; National legislative measures to protect citizens and firms
   
6. Calls on the Member States to review their own legislation on the operations of the intelligence services to ensure that it is consistent with fundamental rights;
   
7. Calls on the Member States to aspire to a common level of protection against intelligence operations based on the highest level of protection which exists in any Member State, since as a rule it is citizens of other states, and hence also of other Member States, that are affected by the operations of foreign intelligence services;
   
8. Calls on the EU institutions, in the event of cooperation between intelligence services under the CFSP, to introduce adequate measures to protect European citizens; the European Parliament, as the logical monitoring body, must for its part create the preconditions for the supervision of this highly sensitive area in order to make it realistic - and indeed defensible - to insist on being granted the necessary monitoring rights; Specific legal measures to combat industrial espionage;
   
9. Calls on the Member States to consider to what extent industrial espionage and the payment of bribes as a means of securing contracts can be combated by means of European and international legal provisions and, in particular, whether WTO rules could be adopted which take account of the distortions of competition brought about by such practices, for example by rendering contracts obtained in this way null and void;
   
10. Calls on the Member States to undertake by means of a clear joint declaration not to engage in industrial espionage against one another, thereby signifying their compliance with the letter and spirit of the EC Treaty; Measures concerning the implementation of the law and the monitoring of that implementation;
    
11. Calls on the national parliaments which have no parliamentary monitoring body responsible for scrutinising the activities of the intelligence services to set up such a body;
    
12. Calls on the monitoring bodies responsible for scrutinising the activities of the secret services, when exercising their monitoring powers, to attach great importance to the protection of privacy, regardless of whether the individuals concerned are their own nationals, other EU nationals or third-country nationals;
    
13. Calls on Germany and England to make the authorisation of further communications interception operations by US intelligence services on their territory conditional on their compliance with the ECHR, i.e. to stipulate that they should be consistent with the principle of proportionality, that their legal basis should be accessible and that the implications for individuals should be foreseeable, and to introduce corresponding, effective monitoring measures, since they are responsible for ensuring that intelligence operations authorised or even merely tolerated on their territory respect human rights; Measures to encourage self-protection by citizens and firms;
    
14. Calls on the Commission and Member States to develop programmes to foster awareness of security problems among citizens and firms and at the same time to provide practical assistance in designing and implementing comprehensive protection strategies;
    
15. Urges the Commission and Member States to devise appropriate measures to promote, develop and manufacture European encryption technology and software and above all to support projects aimed at developing user-friendly open-source encryption software;
    
16. Calls on the Commission and Member States to promote software projects whose source text is made public (open-source software), as this is the only way of guaranteeing that no backdoors are built into programmes;
    
17. Calls on the European institutions and the public administrations of the Member States systematically to encrypt e-mails, so that ultimately encryption becomes the norm; 
    
    OTHER MEASURES
18. Calls on firms to cooperate more closely with counter-espionage services, and particularly to inform them of attacks from outside for the purposes of industrial espionage, in order to improve the services' efficiency;
    
19. Calls on the Commission to put forward a proposal to set up a European advisory centre to deal with issues relating to the security of the information held by firms, with the twin task of increasing awareness of the problem and providing practical assistance;
    
20. Takes the view that an international congress on the protection of privacy against telecommunications surveillance should be held in order to provide NGOs from Europe, the USA and other countries with a forum for discussion of the cross-border and international aspects of the problem and coordination of areas of activity and action;
    
21. Instructs its President to forward this resolution to the Council, the Commission, the governments and parliaments of the Member States and applicant countries and the Council of Europe.

[Source: Draft Report on the existence of a global system for the interception of private and commercial communications (ECHELON interception system)- Temporary Committee on the ECHELON Interception System - Rapporteur: Gerhard Schmid - PE 305.391, 2/113, PR\439868EN.doc - 18May01 / Available on: http://www.europarl.eu.int/tempcom/echelon/prechelon_en.htm]

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