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SECURITY SECTOR / Analytical Documents

Secret Surveillance within the Framework of Counterintelligence Activities - Analysis of Institutional and Legal Framework

On September 12, 2021, information was spread through the Georgian media outlets regarding the alleged illegal mass surveillance of the civil activists, representatives of religious and civil organizations, journalists, politicians, diplomats, and other individuals. Considering the volume, scale, and content of the spread materials, the signs of systemic violation of the right to private life by the State Security Service are apparent, which requires prompt and effective investigation. At the same time, it is essential to analyze whether the legal regime of secret surveillance contains inherent risks of abuse of the right to a private life of the individuals by the State.

The following document will analyze the regulations regarding the power of the State Security Service to conduct the surveillance of electronic communications within the framework of the counterintelligence activities and the deficiencies and challenges in this respect. The document will review the legal norms regulating grounds for launching electronic surveillance, its scope and authorization procedure, duration of the electronic surveillance, storage, use, and destruction of the information obtained as a result of the surveillance, as well as mechanisms for supervision and individual remedies. In addition, the document will critically evaluate the institutional framework of the State Security Service, guarantees for its independence, and system of accountability.

Analysis of the legal regime of the electronic surveillance reveals the following:

  • The institutional design of the State Security Service does not ensure its independence from political influence. The technical ability of the Operational-technical Agency – an organ with close institutional and practical links with the State Security Service - to monitor the communications in real-time creates the risks that the State Security Service will acquire total control.
  • The counterintelligence law contains overly broad grounds for launching secret surveillance measures and envisions the possibility for it to be carried out indefinitely.
  • The regulations regarding the processing of the intercepted data, including the possibility to transfer the data to the investigative authorities, are problematic.
  • Mechanisms for supervision of the electronic surveillance and accountability of the State Security Service in the framework of the Counterintelligence activities are extremely weak. The possibility of adequate control is undermined by the total secrecy of the State Security Service.
  • The individual remedies are ineffective. Based on the exclusive decision of the State Security Service, a person may never find out that they had become a surveillance subject.

The findings of this document demonstrate that risks of unjustified intrusion in the right to private life are primarily derived from the legislation. The problematic aspects revealed as a result of the analysis of the surveillance regime in Georgia, which became especially evident in light of the leaked materials regarding the alleged illegal surveillance practices, once again demonstrated the need for the fundamentally reforming Security Sector and secret surveillance regime in Georgia.

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