Proclamation: Eliminate threats to the freedom of speech and privacy in the SSU draft law
Letter to Verkhovna Rada of Ukraine (Parliament) Committee of the Verkhovna Rada of Ukraine on National Security, Defense and Intelligence
To the committee of Verkhovna Rada of Ukraine on National Security, Defence and Intelligence.
At its sitting on June 16, the Verkhovna Rada Committee on National Security, Defense and Intelligence plans to consider the draft law No. 3196-d “On Amendments to the Law of Ukraine “On Security Service of Ukraine ”,to Improve the Organizational and Legal Principles of the Security Service of Ukraine”, prepared for the second reading.
The public has repeatedly emphasized the dangers of human rights violations, in particular the right to freedom of expression of views, access to information, untouchability of private life and secrecy of communications, which could result from the passage of a draft law without making appropriate amendments. However, despite extensive discussion on these challenges, the final version of the project, which was proposed for consideration by the committee, did not eliminate most of the threats outlined by the public earlier.
Sharing the desire to build a strong, professional and virtuous intelligence agency in Ukraine, the non-governmental organizations that have signed below, once again emphasizes the need to finalize the draft law and eliminate the listed below critical threats to human rights:
Absence of effective mechanisms for monitoring observance of human rights in the activities of the SSU
The draft law in the Article 7 stipulates that the SSU organizes and carries out its activities with unswerving observance of human rights and fundamental freedoms, and temporary restriction of human rights and freedoms is allowed with the permission of the court, only on the grounds and in the order prescribed by the Constitution and laws of Ukraine, under the justified necessity and to the extent necessary to perform the tasks of Ukraine’s Security Service and a commensurate level of danger of the threat. At the same time, the draft law does not contain specific guarantees for the embodiment of these principles during the realization of certain functions of the SSU and does not provide sufficient independent mechanisms for monitoring their observance.
Thus, in accordance with Article 61 of the draft law, constant control over the observance of the constitutional rights of citizens in the performance of the functions of the SSU and in accordance with legal and regulatory instruments of the SSU will be carried out by an official authorized by the President.
Unlimited access of the SSU to private personal information
Article 13 of the draft law gives the SSU unlimited authority to collect and obtain information, including personal data. Herewith, it is not only about open sources or obtaining information from other state agencies in the order prescribed by law, but also about access to confidential information.
Yes, the draft law obliges everyone who has received a request from the Chairman, Deputy or heads of departments of the central government or regional body, within 5 days to provide the requested information. The SSU also gets the right to direct access to any automated information systems and databases – not only public but also private.
At the same time, the draft law does not contain requirements for the amount of information that can be processed in this order for national security purposes, as well as processing rules.
It is also worth noting that the necessity to obtain a court decision is provided only in the absence of a person’s consent to access systems and devices of radio control and audio / video surveillance. However, as the OSCE Office for Democratic Institutions and Human Rights notes in its conclusion, the fact that the SSU will be allowed to refer to the “consent” of individuals causes great concern. As when confronted with armed SSU officers, people will most likely not refuse to give consent.
Such broad powers to gather information without sufficient guarantees of control over its legality and proportionality carry serious risks of violating the right to respect for the private and family life of a person.
Relevant norms should be finalized, in particular, clearly condition the orderliness, grounds and amount of data of state information resources, which are accessed by the SSU, as well as provide judicial control when it comes to access to confidential information which is at the disposal of private individuals.
Access of the SSU to information on electronic communications
Article 13 of the draft Law gives the SSU the right to use special technical means to gather information from communication channels. Their use should be subject to judicial review, as it is a restriction of the right to respect a person’s private life and should be allowed only when provided by law.
Articles 7 and 14 of the Law establish general principles for the restriction of human rights in the activities of the SSU but they are formulated too generally and do not directly mention the use of special technical means. Yes, Article 14 refers to other laws that should establish the grounds and procedure for restricting the right to respect for private life—the CPC, the Law “On Intelligence”, the Law “On Counterintelligence Activities”, but these laws also do not contain a clear procedure for the use of special technical means.
In view of this, in order to avoid discrepancies and manipulations, it is necessary to add requirements for the use of appropriate technical means only in cases directly envisaged by law and by a court decision.
A similar reference to the need for a court decision should be added regarding obtaining information by the SSU from telecommunications operators and providers about the subscriber’s communication—duration, the content of services, transmission routes, etc.
Since Article 13 defines the general procedure for obtaining information by the SSU for the implementation of all functions and tasks assigned to it (including activities to ensure the protection of state secrets, counteraction of intelligence-subversive activities, etc.), and the requirements to provide judicial supervision over the gathering of information on subscriber communications are more or less clearly regulated only by the CPC and the legislation on intelligence and counterintelligence, it is necessary to clearly distinguish requests for information on subscriber communications from other requests of the SSU, which are submitted in the general order.
Lack of procedure and clear legal grounds for blocking websites
Amendments to the Law of Ukraine “On Counterintelligence Activities” vest the SSU with the authority to “temporarily restrict access to certain (identified) information resources (services) on the basis of a court decision in order to prevent a terrorist act or intelligence-subversive activities to the detriment of Ukraine, counter special information operations against Ukraine aimed at undermining the constitutional order, violating the sovereignty and territorial integrity of Ukraine, exacerbating the socio-political and socio-economic situation, those used to organize, prepare, commit, finance, promote or conceal an act of unauthorized interference in the activities of critical information infrastructure, using technical means installed by operators, telecommunications providers and other business entities.”
At the same time, the same draft Law stipulates that restricting access to certain (identified) information resources (services) in order to prevent a terrorist act or intelligence-subversive activities to the detriment of Ukraine is carried out in court on the basis of criminal proceedings, operational or counterintelligence case”.
Thus, the grounds for restricting the access remain unregulated and it appears that a court decision is required only on the grounds of preventing a terrorist act or intelligence-subversive activities to the detriment of Ukraine. The requirement for judicial supervision in other cases, as well as in general the procedure for applying the restriction and even the procedure for obtaining a court decision when it is required are not established.
Therefore, there are serious risks for non-transparent and illegal blocking of websites. Restricting access to Internet resources is a complex legal and technical issue that requires a comprehensive solution in terms of media regulation, the application of sanctions, as well as the dissemination of information for which criminal liability is provided, etc.
The proposed norms on blocking websites in the SSU draft Law are not able to solve the problem, so it is currently proposed to exclude these provisions and add the relevant powers to the SSU when the procedure for their implementation is provided. Currently, the SSU retains the authority to submit Internet resources for inclusion in the sanctions lists.
Restrictions on access to public information about the SSU
The current text of the draft Law does not oblige the SSU to comply with the provisions of the Law of Ukraine “On Access to Public Information”, in particular when qualifying public information as information with limited access (application of a three-part test). This allows the SSU to classify any information regarding its activities at its own discretion, and violates the public’s right to access public information.
Thus, Article 17 stipulates that all information on operational and service activities is not subject to disclosure and provision upon inquiries in accordance with the Law of Ukraine “On Access to Public Information”. At the same time, the operational and service activities of the SSU include all information about the implementation of the powers of the SSU related not only to a combination of secret methods but also public methods. In general, such a broad automatic prohibition is in contradiction with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which requires that the restriction be proportionate and justified in each individual case. For example, if the public interest in such information outweighs the harm from its disclosure.
In addition, Article 66 allows determining the scope and forms of providing information by by-laws. Such an approach may lead to a situation where the decision on the provision of information will be based not on the Law “On Access to Public Information”, which has the supreme force, but on by-laws that can significantly limit the rights of citizens to receive information.
Also, the draft Law does not provide clear guarantees for the openness of declarations of the property status of the SSU leadership, which, given their public status and high corruption risks of their activities, cannot be justified.
Accordingly, the Draft Law should be revised and contain norms that clearly guarantee the proportionality and legality of restricting access to the public information about the SSU activities in the manner prescribed by the Law “On Access to Public Information”, and unambiguously guarantee the openness of information about the SSU leadership holding public office.
NGOs call on the Verkhovna Rada Committee on National Security, Defence and Intelligence, as the committee responsible for drafting the draft Law 3196-d, to take into account the comments made and to support proposals to bring the draft Law in conformity with the requirements on human rights and fundamental freedoms.
The appeal was signed by:
Digital Security Lab
Anti-corruption Research and Educational Center
Center for Civil Liberties
Training and Consulting Center for Access to Information
Movement of Public Initiatives
Human Rights Platform
Ukrainian Helsinki Human Rights Union
ZMINA Human Rights Center
Center for Democracy and Rule of Law
Expert Center for Human Rights
Ukrainian Institute for Human Rights
Internews Ukraine
Institute of Mass Information
Institute Of Regional Medias Development
