The surveillance state: No privacy for the Lebanese

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Two men at work at Lebanon's main surveillance center. (Photo: Haitham Moussawi)

By: Mohamed Nazzal

Published Tuesday, May 13, 2014

One of the accomplishments of the Special Tribunal for Lebanon (STL) was institutionalizing the violation of the Lebanese people’s privacy. A futile political debate with security-related implications over so-called “telecommunications data” has taken center stage in Lebanon. However, the point of departure should be the fact that today, the Lebanese and their right to privacy has been completely violated by their security services, in breach of the constitution and the law.

A few years ago, when Charbel Nahas was the minister of telecommunications, an STL delegation visited him. When Nahas asked what the purpose of the visit was, the shocking answer the delegation gave was to the effect of: We want all the telecommunications data belonging to the Lebanese. Nahas was astonished. What did the entire Lebanese population have to do with the STL’s work? At this point, the delegation, which was comprised of an Italian officer and a British judge, decided to “ease” the minister’s shock, and said, “We have been getting this data consistently. Your predecessor did not mind, and we want to continue what we started earlier.”

Nahas asked the two members of the delegation that regardless of what the STL had been doing in the past, would their respective countries of Italy and Britain give their citizens’ telecom data to any party that asks, or even to one another? The answer was blunt: “No we don’t, but you do. We have been granted this request in the past, which is why we are asking this now.” The answer was nothing short of an insult to any Lebanese citizen with an iota of patriotism.

Nahas recounted this exchange to Al-Akhbar. Lamenting Lebanon’s national sovereignty, or the lack thereof, he told them, “Make a request for data related to specific [phone] numbers or individuals, in a specific area, for a plausible cause. But I can’t give you all the data of all Lebanese in all regions without exceptions. If you don’t want us to know the names you want to investigate, I understand that. But you can ask for data belonging to 100 names for example, among which you can place 5 or 10 names of your suspects. This way we can agree.”

After that meeting, Nahas did not receive any similar requests from the STL, at least not officially. Nahas tried to search the ministry’s archive for a record of previous requests made by the STL and what the STL had obtained from the ministry before he took office. But to Nahas’ surprise, there was no record of any kind. In truth, the STL, he says, “got everything, literally, everything without exception.”

Poor precedents

Naturally, the failed or corrupt status of the Lebanese government predated the STL’s intrigue. Yet the STL managed to set a new, bad precedent. In regard to the telecom data issue in particular, the STL promoted disregard for the privacy of Lebanese citizens within the Lebanese security services.

After the STL completed its forensic investigations, a controversy erupted in Lebanon over the telecom data of private individuals. Often, the March 14 alliance agreed to give all data to the security services, specifically the notorious March 14-affiliated Information Branch of the Internal Security Forces (ISF). The justification was always the same: to stop the wave of political assassinations.

The March 8 alliance objected consistently to granting the security services full access to the telecom data, on the grounds of respecting the privacy of citizens. But this objection was not always successful in blocking access, and the security services were often successful in violating the privacy of the Lebanese.

In one cabinet session, nearly two years ago, chaired by then-Prime Minister Najib Mikati, a heated argument erupted over the telecom data affair. Former Telecommunications Minister Nicolas Sehnaoui said he had signed requests to hand over “specific data” rather than all of the telecom data. But Mikati retorted, “It is not your business to discuss this. You just have to sign what I send you. The cabinet’s decision is clear in authorizing the prime minister to act [on this issue].”

In effect, there is an ambiguous, ambivalent law, like many other Lebanese laws, that allows Mikati to say what he said. The law in question bears the number 99/140, which ostensibly protects the secrecy of communications conducted by any means.

Telecom data at present

At the end of March 2014, a new precedent was set in the telecom data affair. Perhaps for the first time, full access to the complete set of telecom data was given to the security services, without any of the previous controversy and uproar in the media and political circles. What is new then is the silence over the matter. So what happened exactly?

In short, according to parliamentary sources involved in the issue, the new Telecommunications Minister Boutros Harb decided to grant the security services full access to the data, in a departure from previous norms. Before Harb, the norm was to give data specific to the area where a security incident – such as a bombing or clashes – had taken place or to a possible location of wanted suspects, upon request. But today, no data is off limits to the security services, in any sense of the word.

Oddly, the faction that always objected to this – March 8 – is keeping quiet these days, dealing with the issue as though it is a fait accompli. During the cabinet session that approved Harb’s move, there were objections from Hezbollah and Free Patriotic Movement ministers, and reservations by Amal’s ministers, on the grounds that Harb’s decision was in breach of the personal freedom of citizens.

The president intervened during the session, proposing to shorten the planned duration for full access from one year to six months. The motion was then approved after a vote. But, aside from the differences between the political factions, do the Lebanese know that these decisions are in violation of Lebanese law itself?

A law full of loopholes

Nothing in Law 99/140 permits access to telecom data and interception of communications for six months, let alone a year, based on an administrative decision. The text just refers to a period “not exceeding two months.” In other words, the six-month or one-year period clearly contravenes the law.

According to official judicial sources concerned with the issue of the legality of wiretapping, Lebanese law is to a large extent based on a similar French law, which also grants the finance minister there similar powers as the defense minister and interior minister in this regard. But why has this not been included in the Lebanese law? The sources say, “There [in France], they are concerned by tax issues and corruption. You can thus understand why it has not been included in the Lebanese version.”

Violations of the law do not stop at this issue. Article 16 of the law in question restricts wiretapping powers to the Ministry of Interior. It is worth noting here that around two years ago, former Minister of Interior Marwan Charbel inaugurated a special telecom surveillance center in the Mathaf district of Beirut. Some interpreted this as an end to the rivalry among various Lebanese security services.

However, all security services, without exception, continue to illegally operate their own wiretapping divisions of unknown nature and scope. This much was conveyed to Al-Akhbar by high-level judicial and parliamentary sources closely involved in the issue. Again, this means that there are no guarantees the security services are not eavesdropping on the Lebanese away from any legal oversight.

Some might say here that there should be trust in the security services, but trust does not preclude the possibility of “infiltration” of the security services. Indeed, there have been cases where Lebanese officers were caught spying for and collaborating with the enemy.

More important still, what about the legality of wiretapping - the crux of the issue? A senior judicial source says, “The security services themselves do not trust each other. If they all operated through the surveillance center run by the Ministry of Interior in accordance with the law, everyone will be able to see what other security services are up to. Because they sometimes compete, away from national interests, each agency has its own ‘center’ away from the law.”

Perhaps the relevant authorities should initiate a thorough investigation of the issue. It is not a laughing matter; the privacy of the Lebanese is protected in the constitution and international norms and charters.

The judiciary and eavesdropping

Years ago, because of the controversy over telecom data in Lebanon, a Lebanese delegation travelled to France. The delegation was headed by the chairman of the State Shura Council Judge Shukri Sader, accompanied by specialists, to closely examine France’s experience in this regard. The delegation found out that France did not give the data to its security services except partially, in relation to a specific time and place.

The delegation also learned that the French prime minister, according to French norms, would relay requests sent by the ministries of defense, interior, or finance to an independent judicial body to obtain its opinion on the legality of each request and whether it was compatible with the constitution and the citizens’ privacy rights, before making his or her final decision. In Lebanon, although Law 99/140 also requires an independent judicial panel to study such requests, the prime minister usually approves wiretapping or grants full access to data before asking the opinion of the advisory judicial panel.

In Lebanon, according to the text of the odd law in question, the opinion of the judicial body is for guidance only, and it is usually ignored. Otherwise, what does it mean when the prime minister approves surveillance requests, which are then implemented, before contacting the judicial panel over the matter? This is almost farcical.

The judges of this panel in Lebanon, after attempts by some to blame them for sanctioning surveillance, explained to politicians that the law ultimately makes them just an advisory body. The panel consists of the first president of the Court of Cassation, the president of the State Shura Council, and the president of the Court of Audits, or three judges from separate and independent judicial bodies.

In this context, Al-Akhbar learned that after the retirement of the president of the Court of Audits, Aouni Ramadan, a short while ago, requests from the security services continued to be filed with the panel through the prime minister. The requests would be processed by Judge Shukri Sader, but would not be issued officially since the panel did not have a quorum. Interestingly, the security services and the government would not wait for the panel’s response, and would sanction eavesdropping and grant full access to the telecom data as soon as the prime minister approved.

For the STL’s sake

Parliamentary sources familiar with the telecom data issue told Al-Akhbar that initially, the purpose of the whole matter was to “fabricate evidence for the STL, whose work was based on telecom evidence.” At the time, they continued, some security services used the telecom data to pursue Israeli agents in the country, while knowing that all sides would welcome the apprehension of collaborators, with the goal of using this later to bolster the credibility of telecom evidence used by the STL. The same sources said, “The issue was dominated by political and intelligence-related considerations.”

The sources continued, “When advanced surveillance and tracking technologies fell into the hands of various Lebanese security services, spy networks and gangs were captured by intercepting and tracking calls, and so on. But the security services should have kept these techniques secret, and it was odd that this work was publicized in the media. Now, every foreign agent or criminal knows about it, and wanted fugitives know how to avoid using phones in their movements. This has damaged the security of the citizens and the national security in general.”

It is worth mentioning that around two years ago as well, there was an intense controversy in the country when the Information Branch requested access not only to telecom data related to suspect movements, but also the contents of phone calls in addition to short text messages, as well as passwords for social media sites. This issue has since been largely forgotten, and it is not known whether the Information Branch obtained this information or not.

This article is an edited translation from the Arabic Edition.

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