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Forcing Security Services to Seek Court Approval to Intercept Mail Does Little to Protect Against Unscrupulous Spying
From Monday, July 21, all post offices in Russia are obliged to provide “special facilities” for members of the security services to inspect – and open – letters and parcels. The move, embodied in an internal memo from the Ministry of Communications, has caused an outcry in the Russian media and amongst human rights groups, who fear a return to Soviet-era invasions of privacy. But the real threat is not in the law itself, but in how it get implemented – or, more often, breached.
Starting today, members of the Federal Security Bureau, police, and other security services will be able to open Russians’ letters and parcels in special rooms at post offices, which members of the public, and even post office employees, will not have access to.
The purpose of Ministry of Communications Order number 65, according to a ministry press release, is to provide “technological capabilities for the activities of searching authorities.” That basically means sealed rooms – what in Tsarist times were called “black studies” – in which officers of whatever agency is doing the searching can open other people’s mail in peace. Security services also now have access to post office databases, detailing users’ addresses and past use of the postal system.
This did not go over well with the human rights community for obvious reasons. Lev Ponomarev, the head of the For Human Rights NGO, told RIA Novosti that the move was “totally unacceptable” and “unconstitutional,” and said that he is preparing an open letter to President Dmitry Medvedev.
The original form of the order released on May 19 made no reference to the fact that eavesdropping and opening mail is expressly forbidden under both the Russian Constitution and the law On Postal Communication. But despite the constitutional guarantee of “confidentiality of correspondences,” none of this is actually illegal – provided the “searching authorities” have obtained a court warrant. FSB officers, like their counterparts in most countries, can eavesdrop on telephone and email communications, as well as post, provided that a judge gives them permission. In cases of imminent threat (i.e. if they suspect an impending terrorist attack or assassination attempt) security service officers may commence an eavesdropping operation without permission – but if they don’t obtain a warrant within 48 hours, they must stop listening in.
The Ministry of Information belatedly insisted that order 65 is strictly “technical,” and concerns only how ministry employees cooperate with the security services – it has no impact on the restrictions under which the security services operates. In a press release put out on Sunday, the day before the order came into effect, the ministry quoted the 1995 federal law (number 144) that details the loophole, and insisted that “interaction between the authorized body [the agency doing the eavesdropping] and the operator [i.e. the post office] is governed by the approved requirements.”
Andrei Soldatov, an independent analyst who follows the activities of the Russian security services closely, agrees that nothing has really changed. “This order does not change how the security services have to conduct their eavesdropping operations. It is the same as a similar order issued in 2008 in relation to the Internet, and just continues practices adopted in the mid-1990s,” he said.
But, as the Vedomosti daily noted in an editorial on Monday, just because the Ministry of Communications was right in this case, it doesn’t mean that the public anxiety was not justified. “In Russia the situation with privacy of information is unfavorable,” wrote the paper, “and the problem is not in the law.”
Or not with order 65, anyway. Soldatov agrees that those complaining about the Ministry of Communications’ order were barking up the wrong tree. It is not difficult to get a warrant – according to Vedomosti, courts granted all of the 8,200 requests for eavesdropping warrants they received in 2007 to 2008. That in itself raises serious questions about whether the judiciary can be relied on to protect the citizens’ privacy.
Then there is the problem that the existence of all those warrants is almost unverifiable. “The real problem is that if I am an FSB officer, I can go and get a warrant, but I cannot show it to anyone outside my building because it is a state secret,” explained Soldatov. Nor does anyone - least of all a communications company - have any interest in asking to see the document. “If you see it, it makes you party to a state secret, and that puts all sorts of restrictions on your movements and business,” said Soldatov
The ease with which a warrant can be obtained hands unscrupulous officers a blank check to spy on whomever they like. It is easy to insert the names of innocent individuals alongside those of known criminals. This can be used either for the sinister purpose of eavesdropping on human rights activists or other individuals whom someone in the security services or other organs of power may have taken a dislike to, or for the mercenary practice of “commercial listening” – in other words, industrial espionage.
“There are a few private security firms which offer services like providing information on business rivals. But they very seldom actually do their investigating themselves. Instead they just contact some friends in one of the security agencies, and they can artificially tie the target to a criminal case, intercept telephone calls, emails and so on, and then pass it back to the company,” explained Soldatov.
Both the human rights and business communities have voiced their concern about the controversial order. But it seems that the real threat to both is already well established, and lies not in the law, but in the judiciary meant to uphold it. For now, they might do well to heed the war-time propaganda posters that are still in vogue as nostalgia prints. “Don’t prattle on the telephone,” reads one. “Prattlers are a spy’s prize.”
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