To the Committee of the Verkhovna Rada of Ukraine on National Security, Defense and Intelligence
At its meeting on 16 June, the Verkhovna Rada Committee on National Security, Defense and Intelligence plans to consider the draft law 3196-d “On Amendments to the Law of Ukraine “On the Security Service of Ukraine” to improve the organizational and legal framework of the Security Service of Ukraine.”
The public has repeatedly emphasized the dangers of human rights violations, including of the right to freedom of expression, access to information, privacy and the secrecy of communications that may come true if the draft law is adopted without necessary changes. However, despite extensive discussion of these challenges, the final version of the draft law which has been proposed for consideration to the committee has not eliminated most of the threats identified by the public earlier.
Sharing the desire to build a strong, professional and integrity-filled intelligence service in Ukraine, the NGOs that have signed this call re-emphasize the need to finalize the draft law and eliminate the following critical threats to human rights:
Lack of effective mechanisms for monitoring human rights in the activities of the SBU
Article 7 of the draft law stipulates that the SBU organizes and carries out its activities with strict observance of human rights and fundamental freedoms, and temporary restriction of human rights and freedoms is allowed if the court permits so, only on the grounds and in the manner prescribed by the Constitution and laws of Ukraine and to the extent necessary to perform the tasks of the Security Service of Ukraine and considering a commensurate level of threat. At the same time, the draft law does not contain specific guarantees for the implementation of these principles in the performance of certain functions of the SBU and does not provide sufficient independent mechanisms for monitoring their observance.
Namely, in accordance with Article 61 of the draft law, the official authorized by the President will exercise constant oversight over the observance of the constitutional rights of citizens in the exercise of the functions of the SBU and the SBU compliance with effective legal framework. The regulations on such an official, as well as the procedure for registration of relevant acts of the SBU, will also be determined by the President. Given that the SBI is directly subordinated to the President of Ukraine, the proposed oversight mechanism cannot be considered independent.
Unlimited access of the SBU to private personal information
Article 13 of the draft law gives the SBU unlimited powers to collect and obtain information, including personal data. It does not only refer to open sources or obtaining information from other government agencies in the manner prescribed by law, but also to the access to confidential information.
The draft law indeed obliges everyone who has received a request from the SBU Head, Deputy Head or heads of departments of the central office or of regional officers to provide the requested information within 5 days. The SBU is also authorized to enjoy direct access to any automated information systems and databases – not only public, but also private ones. However, the draft law does not specify requirements on the amount of information that can be processed in this way for national security purposes, as well as the rules for its processing.
It is critical that the need to obtain a court decision is referred to only in the absence of a person’s consent to access systems and devices of radio control and audio/video surveillance. However, according to the OSCE Office for Democratic Institutions and Human Rights’ Opinion, the fact that the SBU will be allowed to invoke the ‘consent’ of individuals is a matter of great concern. After all, when confronted with the armed SBU 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 private and family life.
The respective provisions should be revised – specifically, with an aim to clearly define the procedure, grounds and scope of data of the government information resources that become accessible to the SBU, as well as to provide for judicial control when it comes to access to confidential information held by private entities.
SBU access to information on electronic communications
Article 13 of the draft law empowers the SBU to use special technical means to retrieve information from communication channels. Their application should be subject to judicial review, as it restricts the right to respect for a person’s private life, and should only be allowed when provided by law.
Articles 7 and 14 of the draft law establish general principles for the restriction of human rights in the activities of the SBU, but they are formulated too broadly and do not directly mention the use of special technical means. Specifically, 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,” but these laws also do not contain a clear procedure for applying special technical means.
In view of this, to avoid discrepancies and manipulations, it is necessary to add requirements for the use of appropriate technical means only in cases directly provided by law and by court decision.
Similar reference to the need for a court decision should be added regarding the SBU retrieving the information from telecommunications operators and providers about the subscriber’s communication – duration, content of services, transmission routes, etc.
Since Article 13 defines the general procedure for the SBU obtaining information for implementation of all functions and tasks assigned to it (including activities to ensure the protection of state secrets, combating intelligence and subversive activities, etc.), and the requirements of judicial supervision over the retrieval of information on subscriber]’s 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’s communications from other requests of the SBU, which are submitted under the general procedure.
Lack of order and clear legal grounds for website blocking
Amendments to the Law of Ukraine “On Counterintelligence” authorize the SBU to “temporarily restrict access to certain/identified information resources/services based on a court decision in order to prevent a terrorist act or intelligence and subversive activities to the detriment of Ukraine, countering special information operations aimed at undermining the constitutional order, violating the sovereignty and territorial integrity of Ukraine, exacerbating the socio-political and socio-economic situation, those that are used to organize, prepare, commit, finance, promote or conceal an act of unauthorized interference in the activities of critical information infrastructure facilities, using technical means installed by operators, telecommunications providers and other business entities.”
At the same time, the same draft law stipulates that the access to certain/identified information resources/services in order to prevent a terrorist act or intelligence and subversive activities to the detriment of Ukraine can be restricted by court based on criminal proceedings, operational search or counterintelligence affairs.
Therefore, the grounds for restricting access remain inconsistent and it appears that a court decision is only necessary as far as preventing a terrorist act or intelligence and subversive activities to the detriment of Ukraine. The requirement for judicial supervision in other cases is not established, and the procedure for applying the restriction and even the procedure for obtaining a court decision when necessary is neither.
As a result, there are serious risks to opaque and illegal website blocking. 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 restrictions on website blocking in the proposed draft law cannot solve the problem, so it is currently proposed to exclude these provisions and entrust the relevant powers to the SBU when the procedure for their implementation is provided. Currently, the SBU retains the authority to suggest Internet resources for inclusion in the sanctions lists.
Restrictions on access to public information about the SBU
The current text of the draft law does not oblige the SBU to comply with the provisions of the Law of Ukraine “On Access to Public Information,” in particular when identifying public information as information with limited access (application of a three-part test). It allows the SBU to classify any information regarding its activities at its own discretion, in violation of the public’s right to access public information.
Namely, Article 17 stipulates that all information on operational and service activities is not subject to disclosure and is not provided 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 SBU include all information about the implementation of the powers of the SBU not only related to a combination of covert but also public methods. In general, such a broad automatic prohibition is contrary to 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 authorizes that the scope and forms of providing information are determined by the by-laws. Such an approach may lead to a situation where a decision on the provision of information will be informed not by the law “On Access to Public Information,” which shall have the supreme force, but by the by-laws that can significantly limit the rights of citizens to receive information.
In addition, the draft law does not provide clear guarantees for the openness of declarations of property status of the SBU leadership, which cannot be justified, given their public status and high corruption risks of their activities.
In view of this, the draft law should be revised and supplemented with the provisions that clearly guarantee the proportionality and legality of restricting access to public information about the SBU activities in the manner prescribed by the Law “On Access to Public Information” and unambiguously guarantee openness of information about the SBU leadership.
The NGOs call on the Verkhovna Rada Committee on National Security, Defense and Intelligence as the committee responsible for drafting the draft law 3196-d to take into account the comments made and to support proposals on bringing the draft law in line with the requirements on observing human rights and fundamental freedoms.
The call is supported by:
Digital Security Lab Ukraine
Anti-corruption Research and Education Centre
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 the Rule of Law
Human Rights Expert Center
Ukrainian Institute for Human Rights
Institute of Mass Information
Institute for Regional Press Development