To sign the petition requesting Parliament to release the total number of phone, email and internet interceptions since 2009, click here.
The Malta Independent is launching an online petition on its website today in which it requests the Maltese government to make public the total number of telephone calls and internet data intercepted by Malta Security Service, as is done in a high number of Malta’s fellow EU countries.
Through the interception of data, Malta Security Service (MSS) has access to personal emails and internet history, as well as the ability to listen in on telephone conversations – all through a warrant granted by a single person, the minister in charge of MSS. The extent of the practice is, however, unquantifiable since the government does not even publish aggregate data.
The revelations by Vodafone last week indicate that Malta is one of the most spied on nations in Europe, and this solely on the basis of metadata requested specifically by the government from Vodafone. This excludes similar requests to other Maltese telephony operators and also excludes interception data. Through the staggeringly high statistic of 3,773 requests from Vodafone in 2013, when put into the context of Malta’s relatively small population, reveals that on a per capita basis Malta has around 10% more metadata requests than Italy, a country which has severe organised crime problems.
Metadata deals with the location of a device when messages are sent or when calls are made – the user’s current location, and other information about the user, while interception deals with actual content of phone calls through wire taps, as well as the content of messages and emails.
The majority of activities undertaken by MSS are within the purview of national security, and when asked this week in the wake of recent revelations by the Vodafone Group to reveal the annual number of intercepted communications since 2009, a Home Affairs Ministry spokesperson said: “Due to security reasons I cannot divulge [this] information.”
The ministry, however, was not able to provide this newspaper, despite being asked twice, with the exact article of law that prohibits the dissemination of such information – information that is, in fact, published in other EU member states. Nor were experts in the field who were consulted by The Malta Independent on Sunday able to directly pinpoint the law in question. This would imply that the veil of secrecy that shrouds all wire tapping activities in Malta is more a matter of government policy than law.
National security is, of course, a public concern, but the question remains as to where the powers granted in the name of national security stop and where public interest and the public’s right to privacy begin.
While it is perfectly understandable that the actual details of communications interceptions cannot be made public for a number of obvious reasons, the publication of an aggregate number of phone taps carried out holds no such national security implications, other than revealing the extent to which the government is listening in on its citizens.
Without information relating to the number of wire taps, the press and public cannot even begin to assess whether there has been any indication of abuse by MSS or not.
Ministerial v. judicial control
Contacted by this newspaper, attorney Max Ganado explained: “The agenda of a minister is always dictated by short-term political considerations and this is dangerous in the context of decisions of this type which need to be objectively justifiable.
“A judge takes a long-term view based on past experience and precedents which can then be legally and judicially analysed for integrity, they are less politically controversial. In this country, we have the habit of changing our views depending on the political angle we support, or whether we are in government or opposition. Judges don’t do that when applying the law.”
As a democratic country we have full respect for the rule of law and fundamental human rights of persons living in Malta, Dr Ganado said.
He adds, “The right to privacy is also recognised and generally respected. As with all human rights there is always a balance between the private interest and the public interest and this is also reflected in our Constitution, which incidentally was written in the 1960s’, long before the digital age.”
As such, the Constitution cannot cater for the massive advance in technology which has now made it possible to gather information in a total different way than in the past, Dr Ganado said. He believes that reasonable limitations can arise on the basis of defence, public safety, public order and so on.
He adds, “It is always however subject to a test of being reasonably justifiable in a democratic society and even public interest can sometimes go too far. This is often a very subjective issue. Many people have great suspicion of governments and public administration and start from the premise that whatever government does it must be doing to invade our privacy and to breach our freedoms and rights, always an incursion which is unjustifiable.
“On the other hand, when the government fails to protect us from criminality, abuse and harm, we are all up in arms on the ineffectiveness of policy and enforcement. Access to private information is often necessary to discover crime because no one commits crime in the open –criminals rarely flout the law in public! So methods using today’s tools and realities have been devised to combat these threats to society.”
The system used by MSS permits the service to use a single interface in order to intercept any form of electronic communication – from mobile lines, fixed lines or internet data.
Security Service Act
The Security Service Act (Chapter 391 of the Laws of Malta) highlights the powers given to Malta Security Service regarding the gathering of communications data. This law indicates that the majority of power in this instance derives from the minister in charge of MSS. Article 6 of the law in question states: “No interception of or interference with communications in the course of their transmission by post or by means of a radio communications or telecommunication system or by any other means shall be unlawful if it is authorised by a warrant issued by the Minister under this article.”
The Security Service can ask for a warrant from the Minister to tap any phone or access any other personal communications for a period of six months, which can then be prolonged at the discretion of the Minister. The Act also states that a Permanent or Cabinet Secretary can sign the warrant in an urgent case where the Minister has expressly authorised its issue or modification and a statement of that fact is endorsed on it.
The Security Service Act defines interception as “in relation to a warrant, includes the obtaining possession of, disrupting, destroying, opening, interrupting, suppressing, stopping, seizing, eavesdropping on, surveilling, recording, copying, listening to and viewing of communications and the extraction of information from such communications”.
This essentially means that not only does MSS have the power to access information, but also withhold information sent by you to other parties and vice-versa. It is also unclear whether MSS would need to inform communications operators of any data it is acquiring.
Checks and balances
A commissioner to oversee and investigate complaints made about MSS does exist and is required to submit an annual report to the Security Committee. The Commissioner must be a current or retired member of the judiciary or an ex-Attorney General. Should one not be appointed, then his job falls by default to the current Attorney General. A problem arises when trying to uncover whether someone has been investigated by MSS and has had his privacy unduly invaded.
In the discharge of his functions, according to the law, the Commissioner shall act in his individual judgment and shall not be subject to the direction or control of any other person or authority and shall not be liable to be questioned by any court. The Commissioner also keeps under review the Minister’s powers relating to the issuing of warrants.
An annual report is submitted by the Commissioner to the Prime Minister. The Prime Minister, however, can then exclude any material from the annual report shown to the Security Council which could be prejudicial to the continued service or function of the Security Service after consulting the Commissioner.
A Security Committee is also established – comprised of the Prime Minister, the Minister in charge of the Security Services, the Minister responsible for Foreign Affairs and the Leader of the Opposition. Its primary task is to examine the expenditure, administration and policy of the Security Service.
The Prime Minister also has an obligation to present an annual report of the Security Committee to the House of Representatives but he may also choose to withhold information if, after discussion in the Security Committee, it appears that the publication of information in that report could prejudice continued discharge of the functions of Security Service.
This results in certain limitations on the knowledge obtained by Members of Parliament on the workings within MSS.
A distinction between the Police Force and the Security Services must also be made. While the police must obtain a warrant from the judiciary to tap someone’s phone, the Security Services need a warrant granted by the Minister. Herein lies another problem, one relating to oversight. Home Affairs Minister Manuel Mallia is currently in charge of the Security Service and has already said in the local media that the Ministry will look into strengthening oversight on MSS day-to-day wire-tapping capability. These rules have been in place under several administrations.
Metadata v. interception
Vodafone’s report regarding metadata and interception requested by national governments sparked controversy in Malta, as it is one of few countries in the Vodafone report which does not permit the disclosure of any information related to wiretapping or interception of data.
Malta is on the same level as countries with dubious human rights records including Egypt, Qatar and India, while Italy for example, revealed the total number of content intercepted to be 140,000 in 2013. The rest of the EU countries, for the most part, allow such information to be made public.
The Vodafone report on 6 June revealed that Malta is one of the most spied on nations in Europe, taking into account metadata requested from Vodafone alone, excluding other communications operators whose information was not revealed. Putting this into context, Malta has a population of around 420,000. This relates to Metadata, and as such does in no way include actual interception of communications but with a number so high, an indication is given to the possibility of a high number of communication interception by national services.
Following this revelation, the Home Affairs Ministry said in local media that the absolute majority of requests were made by the police to aid in criminal investigations and that very few were requests made by the Security Service. The fact remains, however, that the Vodafone report, in relation to data it was allowed to reveal in Malta, deals solely with metadata requested from Vodafone clients, as interception data in Malta is not available to the public.
With regard to metadata, the European Court of Justice recently gave a ruling which will bring into question the right for governments to force communications operators to hold and grant access to metadata to national agencies.
The Snowden Affair
A comparison can be drawn with the National Security Agency (NSA) in the USA. When Edward Snowden released confidential documents relating to spying on US citizens by the agency, an act which goes against the US Constitution, a worldwide debate on phone tapping and security agencies abilities to access personal conversations, data and documents was sparked – the right to privacy being a major bone of contention when it comes to national security.
US citizens are divided on the issue as to whether the NSA should be allowed to spy on its own citizens or not, due to fears of further terrorist attacks.
However, should MSS have the ability to spy on a citizen at will; and only on a warrant from a single minister rather than a member of the judiciary or an independent authority? The concern is that without proper oversight, abusive situations can arise.
The questions remain as to who monitors MSS’ daily activities and whether an annual report to the Security Committee constitutes enough oversight in such a sensitive area in which the fundamental right to privacy can be ridden over roughshod.