CSOs welcome the transparency of the preparation process and progress of the draft law №3196-d on amendments to the Law of Ukraine “On Security Service of Ukraine” to the second reading. The reform of the Security Service of Ukraine, the body that ensures the state security of Ukraine, is extremely important.
It is a positive move that provisions on pre-trial withdrawal of political parties from the elections and pre-trial revocation of TV licenses were removed from the draft law. These terms allowed the SSU to interfere in the election process and restrict freedom of expression without due court proceedings, as required by international standards.
At the same time, we, the undersigned civil society organizations and independent experts, once again emphasize the need to take into account the previously received comments from civil society organizations working in the field of protection of freedom of expression.
We emphasize that the text of the draft law should be finalized in order to eliminate a number of threats to human rights:
Collection of information
The current wording of the draft law, published by Mariana Bezuhla, gives the SSU the right to access any audio and video surveillance devices and other factual storage media with owners’ or court consent. However, it does not contain a clear amount of information that can be processed for national security purposes as well as processing regulations.
This creates a risk of violating the right to respect for private and family life, including illegal access to personal data. After all, such a comprehensive right will allow to obtain data from millions of mobile operator or Internet provider users, as well as seizing personal phones, photo cameras, laptops for further usage of information that they contain.
Moreover, this will be possible without a relevant court decision. As the OSCE Office for Democratic Institutions and Human Rights (ODIHR) notes in its opinion, it is a matter of great concern that the SSU will be allowed to refer to the ‘consent’ of individuals. After all, when confronted with armed SSU officers, people will most likely not refuse to give ‘consent’.
Withdrawal of information from telecommunication networks
The draft law allows the SSU upon the court decision to take information from telecommunication networks and electronic information networks (in particular, information about a subscriber, telecommunication services, their duration, content), but does not specify the procedure for withdrawal of information. Moreover, the bill does not guarantee that the information will be collected in the minimum necessary amount and only for reasons that justify an invasion of privacy.
This allows the SSU to eavesdrop on telephone conversations, intercept electronic communications without any restrictions and may lead to a violation of the right to respect for private and family life.
Procedure for blocking web-sites
The draft law gives the SSU a warrant to block websites. However, different provisions of the draft, namely Articles 7 and 8-2 of the Law of Ukraine “On Counterintelligence Activities”, provide a different list of grounds for such blocking.
Despite the common rule that websites are blocked by a court decision, the above-mentioned inconsistency, as well as the possibility of making a decision to block a website for 7 days by a single authorized deputy head of the court of appeal, creates risks of extra-judicial blocking of web-sites which is unacceptable in a democratic society.
In addition, this norm does not take into account the guarantees of proportionality and the need for restricting access to malicious content before blocking the whole website. There are also no guarantees of involving representatives of the blocked resource in the relevant process, which is a requirement for such procedures and stated by the European Court of Human Rights in a series of cases of blockades in Russia in summer 2020.
Transparency and openness of activity
The current wording of the draft law does not oblige the SSU to comply with provisions of the Law of Ukraine “On Access to Public Information”, in particular when classifying public information as information with limited access. This allows the SSU to classify any information regarding its activities at its own discretion and violates the right of access to public information.
Mechanisms of public oversight of the activities of the SSU
The draft law does not define a mechanism for independent and effective oversight of the activities of the Security Service of Ukraine, in particular proper public control and public participation in the formation and implementation of state policy in the field of national security. The lack of a proper system of oversight and control increases the risks of human rights abuses and violations.
The listed risks indicate a threat to human rights and freedoms, including freedom of expression and the right to respect for private and family life.
In view of the above-mentioned, the undersigned CSOs and independent experts, call on the authors of the bill to eliminate the shortcomings of the draft Law № 3196-d “On Amendments to the Law of Ukraine “On the Security Service of Ukraine” to meet international standards on protection of privacy and freedom of expression, and are ready to provide written recommendations for improving the text of the bill.
Center for Democracy and Rule of Law
Digital security lab
Human Rights Platform
Training Center for Access to Information
Anti-Corruption Research and Education Center (ACREC)
Institute of Mass Information
Ukrainian Institute for Human Rights
ZMINA Human Rights Center
Ukrainian Helsinki Human Rights Union