24 May 2001. Thanks to the Federation of American Scientists/SA.
Source:
http://fas.org/irp/program/process/europarl_draft.pdf
(868KB)
[92 pages.]
EUROPEAN PARLIAMENT
1999 2004
Temporary Committee on the ECHELON Interception System
4 May 2001
WORKING DOCUMENT
in preparation for a report on the existence of a global system for intercepting private and commercial communications (ECHELON interception system)
Temporary Committee on the ECHELON Interception System
Rapporteur: Gerhard Schmid
DT\437638EN.doc PE 300.153
Preface
This working document summarises the findings from the hearings in committee, private discussions with experts and systematic consideration of the available material by the rapporteur.
The working document forms the nucleus of the future report. It reflects the stage reached in the hearings in mid-April. However, it will be possible to complete the report only after the visit to the USA. Firstly, it will then be possible to incorporate the results of that visit and of the last hearing of experts in Chapters 5 (evidence for the existence of a global interception system) and 10 (industrial espionage). Secondly, it is intended that any additional aspects which arise from the debate on this working document should also be dealt with in the report.
1.1. The reasons for setting up the committee
1.2. The claims made in the two STOA studies on a global interception system codenamed ECHELON1.2.1. The first STOA report of 1997
1.2.2. The 1999 STOA reports1.3. The mandate of the committee
1.4. Why not a committee of inquiry?
1.5. Working method and schedule
1.6. Characteristics ascribed to the ECHELON system
2. The operations of foreign intelligence services
2.1. Introduction
2.2. What is espionage?
2.3. Espionage targets
2.4. Espionage methods2.4.1. Human intelligence
2.4.2. Processing of electromagnetic signals2.4.2.1. Electromagnetic signals used for non-communication purposes
2.4.2.2. Processing of intercepted communications2.5. The operations of certain intelligence services
3. Technical conditions governing the interception of telecommunications
3.1. The interceptibility of various communication media
3.2. The scope for interception on the spot
3.3. The scope for a worldwide interception system3.3.1. Access to communication media3.3.1.1. Cable communications
3.3.1.2. Radio communications
3.3.1.3. Communications transmitted by geostationary telecommunications satellites
3.3.1.4. Scope for interception from aircraft and ships
3.3.1.5. Scope for interception by spy satellites3.3.2. Scope for the automatic analysis of intercepted communications: the use of filters
3.3.3. The example of the German Federal Intelligence Service
4. Satellite communications technology
4.1. The significance of telecommunications satellites
4.2. How a satellite link operates4.2. 1. Geostationary satellites
4.2.2. The route followed by signals sent via a satellite communication link
4. 2. 3. The most important satellite communication systems4. 2.3.1. Global satellite systems
4.2.3.2. Regional satellite systems
4.2.3.3 National satellite systems4.2.4. The allocation of frequencies
4.2.5. Satellite footprints
4.2.6. The size of antennae required by an earth station
5.1. Why is it necessary to work on the basis of clues?5.1.1. Evidence of interception activity on the part of foreign intelligence services
5.1.2. Evidence for the existence of stations in the necessary geographical areas
5.1.3. Evidence of a close intelligence association5.2. How can a satellite communications interception station be recognised?
5.2.1. Criterion 1: accessibility of the installation
5.2.2. Criterion 2: type of antenna
5.2.3. Criterion 3: size of antenna
5.2.4. Conclusion5.3. Publicly accessible data about known interception stations
5.4. The UKUSA Agreement
5.5. Evaluation of declassified American documents5.5. 1. Nature of documents
5.5.2. Content of documents5.5.2.1. Purpose and structure of the NSA (Documents 1, 4, 10, 11 and 16)
5.5.2.2. Powers of the Intelligence Agencies (Document 7)
5.5.2.3. Cooperation with others services (Documents 2a and 2b)
5.5.2.4. Mention of units active in 'ECHELON sites' (Documents 9 and 12)
5.5.2.5. Mention of Stations (Documents 6, 9 and 12)
5.5.2.6. Protection of the privacy of US citizens (Documents 7, 7a to f, I I and 16)
5.5.2.7. Definitions (Documents 4, 5a and 7)5.5.3. Summary
5.6. Information from authors and journalists specialised in this field
5.6.1. Nicky Hager's book
5.6.2. Duncan Campbell
5.6.3. Jeff Richelson
5.6.4. James Bamford
5.6.5. Bo Elkjaer and Kenan Seeberg5.7. Statements by former intelligence service employees
5.7.1. Margaret Newsham. (former NSA employee)
5.7.2. Wayne Madsen (former NSA employee)
5.7.3. Mike Frost (former NSA employee)
5.7.4. Fred Stock (former Canadian secret service employee)5.8. Information from government sources
5.8.1. USA
5.8.2. UK
5.8.3. Australia
5.8.4. Netherlands
5.8.5. Italy5.9. Parliamentary reports
5.9.1. Reports by the Comité Permanent R, Belgium's monitoring committee
5.9.2. Report by the French National Assembly's Committee on National Defence
6. Might there be other global interception systems?
6.1. Requirements of such a system6.1.1. Technical and geographical requirements
6.1.2. Political and economic requirements6.2. France
6.3. Russia
6.4. The other G-8 States and China
7. Compatibility of an 'ECHELON' type communications interception system with Union law
7.1. Preliminary considerations
7.2. Compatibility of an intelligence system with Union law7.2.1. Compatibility with EC law
7.2.2. Compatibility with other EU law7.3. The question of compatibility in the event of misuse of the system for industrial espionage
7.4. Conclusion
8.1. Communications surveillance as a violation of the fundamental right to privacy
8.2. The protection of privacy under international agreements
8.3. The rules laid down in the ECHR8.3.1. The importance of the ECHR in the EU
8.3.2. The geographical and personal scope of the protection provided under the ECHR
8.3.3. The admissibility of telecommunications surveillance pursuant to Article 8 of the ECHR
8.3.4. The significance of Article 8 of the ECHR for the activities of intelligence services8.4. The requirement to monitor closely the activities of other countries' intelligence services
8.4.1. Inadmissibility of moves to circumvent Article 8 of the ECHR through the use of other countries' intelligence services
8.4.2. Implications of allowing non-European intelligence services to carry out operations on the territory of Member States which are ECHR contracting parties8.4.2.1. The relevant case law of the European Court of Human Rights
8.4.2.2. Implications for stations
8.4.2.3. Implications for interception carried out on behalf of third parties
8.4.2.4. Particular duty of care in connection with third states
9. Are EU citizens adequately protected against the activities of intelligence services?
9.1. Protection against the activities of intelligence services: a task for the national parliaments
9.2. The powers enjoyed by national authorities to carry out surveillance measures
9.3. Monitoring of intelligence services
9.4. Assessment of the situation for European citizens
10. Protection against industrial espionage
10.1. Firms as espionage targets10.1.1. Espionage targets in detail10.1.1.1. Sectors of the economy
10.1.1.2. Departments of individual firms10.1.2. Competitive intelligence
10.2. Damage caused by industrial espionage
10.3. Who carries out espionage?10.3.1. Company employees (insider crime)
10.3.2. Private espionage firms
10.3.3. Hackers
10.3.4. Intelligence services10.4. How is espionage carried out?
10.5. Industrial espionage by states10.5.1. Strategic industrial espionage by the intelligence services
10.5.2. Intelligence services as agents of competitive intelligence10.5.2.1. High-tech states
10.5.2.2 Technologically less-advanced states10.6. Is ECHELON suitable for industrial espionage?
10.7. Published cases
10.8. Protection against industrial espionage10.8.1. Legal protection
10.8.2. Other obstacles to industrial espionage10.9. The USA and industrial espionage
10.10. Security of computer networks
10.11. Under-estimation of the risks10.11.1. Large firms
10.11.2. Small and medium-sized businesses
10.11.3. European institutions
10.11.4. Research bodies
11. Cryptography as a means of self-protection
11.1. Purpose and method of encryption11.1.1. Purpose of encryption
11.1.2. How encryption works11.2. Security of encryption systems
11.2.1. Meaning of 'security' in encryption: general observations
11.2.2. Absolute security: the one-time pad
11.2.3. Relative security at the present state of technology11.2.3.1. The use of decryption and encryption machines
11.2.3.2. Use of computers in cryptography11.2.4. Standardisation and the deliberate restriction of security
11.3. The problem of the secure distribution/handover of keys
11.3.1. Asymmetric encryption: the public-key process
11.3.2. Public-key encryption for private individuals
11.3.3. Future processes11.4. Security of encryption products
11.5. Encryption in conflict with state interests11.5.1. Attempts to restrict encryption
11.5.2. The significance of secure encryption for e-commerce
11.5.3. Problems for business travellers11.6. Practical issues in connection with encryption 83
12. The EU's external relations and intelligence gathering
12.1. Introduction
12.2. Scope for cooperation within the EU12.2.1. Existing cooperation
12.2.2. Advantages of a Joint European intelligence policy12.2.2.1. Professional advantages
12.2.2.2. Budget advantages
12.2.2.3. Political advantages12.2.3. Concluding remarks
12.3. Cooperation beyond EU level
12.4. Final remarks
13. Conclusions and recommendations
13.1. Prefatory remark
13.2. Conclusions
13.3. Recommendations
On 5 July 2000 the European Parliament decided to set up a temporary committee on the ECHELON system. This step was prompted by the debate on the study commissioned by STOA1 concerning the so-called ECHELON system2, which the author, Duncan Campbell, had presented at a hearing of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs on the subject 'the European Union and data protection'.
____________________
1 STOA (Scientific and Technological Options Assessment) is a department of the Directorate-General for Research of the European Parliament which commissions research.2 The state of the art in Communications Intelligence (COMINT) of automated processing for intelligence purposes of intercepted broadband multi-language leased or common carrier systems and its applicability to COMINT targeting and selection, including speech recognition (October 1999).
1.2.1. The first STOA report of 1997
A report which STOA3 commissioned from the Omega Foundation for the European Parliament in 1997 on 'An Appraisal of Technologies of Political Control' described ECHELON in a chapter concerning 'national and international communications interception networks'. The author claimed that all e-mail, telephone and fax communications in Europe were routinely intercepted by the US National Security Agency4. As a result of this report, the alleged existence of a comprehensive global interception system called ECHELON was brought to the attention of people throughout Europe.
____________________
3 Scientific and Technological Options Assessment4 Steve Wright, An appraisal of technologies of political control (1998), 20
1.2.2. The 1999 STOA reports
In 1999, in order to find out more about this subject, STOA commissioned a five-part study of the 'development of surveillance technology and risk of abuse of economic information'. Part 2/5, by Duncan Campbell, concerned the existing intelligence capacities and particularly the mode of operation of ECHELON5.
____________________
5 The state of the art in Communications Intelligence (COMINT) of automated processing for intelligence purposes of intercepted broadband multi-language leased or common carrier systems and its applicability to COMINT targeting and selection, including speech recognition (October 1999), PE 168.184.
Concern was aroused in particular by the assertion in the report that ECHELON had moved away from its original purpose of defence against the Eastern Bloc and was currently being used for purposes of industrial espionage. Examples of alleged industrial espionage were given in support of the claim: in particular, it was stated that Airbus and Thomson CFS had been damaged as a result.
As a result of the STOA study, ECHELON was debated in the parliaments of virtually all the Member States; in France and Belgium, reports were even drafted on it.
At the same time as it decided to set up a temporary committee, the European Parliament drew up its mandate. It reads as follows:
'- to verify the existence of the communications interception system known as ECHELON, whose operation is described in the STOA report published under the title "Development of surveillance technology and risks of abuse of economic information";- to assess the compatibility of such a system with Community law, in particular Article 286 of the EC Treaty and Directives 95/46/EC and 97/66/EC, and with Article 6(2) of the EU Treaty, in the light of the following questions:
- are the rights of European citizens protected against activities of secret services?- is encryption an adequate and sufficient protection to guarantee citizens' privacy or should additional measures be taken and if so what kind of measures?
- how can the EU institutions be made better aware of the risks posed by these activities and what measures can be taken?
- to ascertain whether European industry is put at risk by the global interception of communications;
- possibly, to make proposals for political and legislative initiatives.'
The European Parliament decided to set up a temporary committee because it is possible to set up a committee of inquiry only to investigate violations of Community law under the EC Treaty (Article 193 TEC), and such committees can accordingly only consider matters governed by it. Matters falling under Titles V (Common Foreign and Security Policy) and VI (Police and Judicial Cooperation in Criminal Matters) of I the Treaty on European Union are excluded. Moreover, under the interinstitutional decision6 the special powers of a committee of inquiry to call people to appear and to inspect documents apply only if grounds of secrecy or public or national security do not dictate otherwise, which would certainly make it impossible to summon secret services to appear. Furthermore, a committee of inquiry cannot extend its work to third countries, because by definition the latter cannot violate EU law. Thus, setting up a committee of inquiry would only have restricted the scope of any investigations opening up any additional rights, for which reason the idea was rejected by a majority of Members of the European Parliament.
____________________
6 Decision of the European Parliament, the Council and the Commission of 19 April 1995 on the detailed provisions governing the exercise of the European Parliament's right of inquiry (95/167/EC), Article 3(3)-(5).
With a view to carrying out its mandate in full, the committee decided to proceed in the following way. A programme of work proposed by the rapporteur and adopted by the committee listed the following relevant topics:
1. Certain knowledge about ECHELON,2. Debate by national parliaments and governments,
3. Intelligence services and their operations,
4. Communications systems and the scope for intercepting them,
5. Encryption,
6. Industrial espionage,
7. Aims of espionage and protective measures, and
8. Legal context and protection of privacy.
The topics were considered consecutively at the individual meetings, the order of consideration being based on practical grounds and thus not implying anything about the value assigned to the individual topics.
By way of preparation for the meetings, the rapporteur systematically scrutinised and evaluated the material available. At the meetings, in accordance with the requirements of the topic concerned, representatives of national administrations (particularly secret services) and parliaments in their capacity as bodies responsible for monitoring secret services were invited to attend, as were legal experts and experts in the fields of communications and interception technology, business security and encryption technology with both academic and practical backgrounds. Journalists who had investigated this field were also heard.
The meetings were generally held in public, although some sessions were also held behind closed doors where this was felt to be advisable in the interests of obtaining information.
In addition, the chairman of the committee and the rapporteur visited London and Paris together to meet people who for a wide variety of different reasons were unable to attend meetings of the committee but whose involvement in the committee's work nonetheless seemed advisable. For the same reasons, the committee's bureau, the coordinators and the rapporteur travelled to the USA. The rapporteur also held many one-to-one talks, in some cases in confidence.
The system known as 'ECHELON' is an interception system which differs from other intelligence systems in that it possesses two features which make it quite unusual:
The first such feature attributed to it is the capacity to carry out quasi-total surveillance. Satellite receiver stations and spy satellites in particular are alleged to give it the ability to intercept any telephone, fax, Internet or e-mail message sent by any individual and thus to inspect its contents.
The second unusual feature of ECHELON is said to be that the system operates worldwide on the basis of cooperation proportionate to their capabilities among several states (the UK, the USA, Canada, Australia and New Zealand), giving it an added value in comparison to national systems: the states participating in ECHELON (ECHELON states) can place their interception systems at each other's disposal, share the cost and make joint use of the resulting information. This type of international cooperation is essential in particular for the worldwide interception of satellite communications, since only in this way is it possible to ensure in international communications that both sides of a dialogue can be intercepted. It is clear that, in view of its size, a satellite receiver station cannot be established on the territory of a state without that state's knowledge. Mutual agreement and proportionate cooperation among several states in different parts of the world is essential.
Possible threats to privacy and to businesses posed by a system of the ECHELON type arise not only from the fact that is a particularly powerful monitoring system, but also that it operates in a largely legislation-free area. Systems for the interception of international communications are not usually targeted at residents of the home country. The person whose messages were intercepted would have no domestic legal protection, not being resident in the country concerned. Such a person would be completely at the mercy of the system. Parliamentary supervision would also be inadequate in this area, since the voters, who assume that interception 'only' affects people abroad, would not be particularly interested in it, and elected representatives chiefly follow the interests of their voters. That being so, it is hardly surprising that the hearings held in the US Congress concerning the activities of the NSA were confined to the question of whether US citizens were affected by it, with no real concern expressed regarding the existence of such a system in itself. It thus seems all the more important to investigate this issue at European level.
In addition to police forces, most governments run intelligence services to protect their country's security. As their operations are generally secret, they are also referred to as secret services. These services have the following tasks:
- gathering information to avert dangers to state security- counter-espionage in general
- averting possible dangers to the armed forces
- gathering information about situations abroad.
Governments have a need for systematic collection and evaluation of information about certain situations in other states. This serves as a basis for decisions concerning the armed forces, foreign policy and so on. They therefore maintain foreign intelligence services, part of whose task is to systematically assess information available from public sources. The rapporteur has been informed that on average this accounts for at least 80% of the work of the intelligence services.7 However, particularly significant information in the fields concerned is kept secret from governments or businesses and is therefore not publicly accessible. Anyone who nonetheless wishes to obtain it has to steal it. Espionage is simply the organised theft of information.
____________________
7 The Commission on the Roles and Capabilities of the US Intelligence Community has stated in its report 'Preparing for the 21" Century: An Appraisal of US Intelligence' that 95% of all economic intelligence is derived from open sources (Chapter 2, 'The Role of Intelligence').
The classic targets of espionage are military secrets, other government secrets or information concerning the stability of or dangers to governments. These may for example comprise new weapons systems, military strategies or information about the stationing of troops. No less important is information about forthcoming decisions in the fields of foreign policy, monetary decisions or inside information about tensions within a government. In addition there is also interest in economically significant information. This may include not only information about sectors of the economy but also details of new technologies or foreign transactions.
Espionage involves gaining access to information which the holder would rather protect from being accessed by outsiders. This means that the protection needs to be overcome and penetrated. This is the case with both political and industrial espionage. Thus the same problems arise with espionage in both fields, and the same techniques are accordingly used in both of them. Logically speaking there is no difference, only the level of protection is generally lower in the economic sphere, which sometimes makes it easier to carry out industrial espionage. In particular, businessmen tend to be less aware of risks when using interceptible communication media than does the state when employing them in fields where security is a concern.
2.4.1. Human intelligence
Protection of secret information is always organised in the same way:
Recruits generally work for an outside service or business for the following reasons:
A borderline case is unintentional cooperation by means of which information is 'creamed off'. This involves persuading employees of authorities or businesses to disclose information in casual conversation, for example by exploiting their vanity, under apparently harmless circumstances (through informal contact at conferences or trade fairs or in hotel bars).
The use of people has the advantage of affording direct access to the desired information. However, there are also disadvantages:
Where possible, therefore, organisations try to replace the use of agents or recruits with nonhuman espionage. This is easiest in the case of the analysis of radio signals from military establishments or vehicles.
2.4.2. Processing of electromagnetic signals
The form of espionage by technical means with which the public are most familiar is that which uses satellite photography. In addition, however, electromagnetic signals of any kind are intercepted and analysed ('signals intelligence', SIGINT).
2.4.2.1. Electromagnetic signals used for non-communication purposes
In the military field, certain electromagnetic signals, e.g. those from radar stations, may provide valuable information about the organisation of enemy air defences ('electronic intelligence', ELINT). In addition, electromagnetic radiation which could reveal details of the position of troops, aircraft, ships or submarines is a valuable source of information for an intelligence service. Monitoring other states' spy satellites which take photographs, and recording and decoding signals from such satellites, is also useful.
The signals are recorded by ground stations, from low-orbit satellites or from quasi-geostationary SIGINT satellites. This aspect of intelligence operations using electromagnetic means consumes a large part of services' interception capacity. However, this is not the only use made of technology.
2.4.2.2. Processing of intercepted communications
The foreign intelligence services of many states intercept the military and diplomatic communications of other states. Many of these services also monitor the civil communications of other states if they have access to them. In some states, services are also authorised to monitor incoming or outgoing communications in their own country. In democracies, intelligence services' monitoring of the communications of the country's own citizens is subject to certain triggering conditions and controls. However, domestic law only protects citizens within the territory of their own country (see Chapter 8).
Public debate has been sparked primarily by the interception operations of the American and British intelligence services. They have been criticised for recording and analysing communications (voice, fax, e-mail). A political assessment requires a yardstick for judging such operations. The interception operations of foreign intelligence services in the EU may be taken as a basis for comparison. Table I provides an overview. This shows that interception of private communications by foreign intelligence services is by no means confined to the American or British foreign intelligence services.
| Country | Communications in foreign countries |
State communications | Civilian communications |
| Belgium | + |
+ |
- |
| Denmark | + |
+ |
+ |
| Finland | + |
+ |
+ |
| France | + |
+ |
+ |
| Germany | + |
+ |
+ |
| Greece | + |
+ |
- |
| Ireland | - |
- |
- |
| Italy | + |
+ |
+ |
| Luxembourg | - |
- |
- |
| Netherlands | + |
+ |
+ |
| Austria | + |
+ |
- |
| Portugal | + |
+ |
- |
| Sweden | + |
+ |
+ |
| Spain | + |
+ |
+ |
| UK | + |
+ |
+ |
| USA | + |
+ |
+ |
| Canada | + |
+ |
+ |
| Australia | + |
+ |
+ |
| New Zealand | + |
+ |
+ |
Table 1: Interception operations by intelligence services in the EU and in the ECHELON states
The columns refer to:
Column 1: The country concerned
Column 2: Communications in foreign countries intercepted
Column 3: State communications (military, embassies, etc.) intercepted
Column 4: Civilian communications intercepted
If people wish to communicate with one another over a given distance, they need a medium. This medium may be:
- air (sound waves)- light (Morse lamp, fibreoptic cable)
- electric current (telegraph, telephone)
- an electromagnetic wave (all forms of radio).
Any third party who succeeds in accessing the medium can intercept the communications. This process may be easy or difficult, feasible anywhere or only from certain locations. Two extreme cases are discussed below: the technical possibilities available to a spy working on the spot, on the one hand, and the scope for a worldwide interception system, on the other.
On the spot, any form of communication can be intercepted if the eavesdropper is prepared to break the law and the target does not take protective measures.
- Conversations in rooms can be intercepted by means of planted microphones (bugs) or laser equipment which picks up vibrations in window panes.- Screens emit radiation which can be picked up at a distance of up to 30 metres, revealing the information on the screen.
- Telephone, fax, and e-mail messages can be intercepted if the eavesdropper taps into a cable leaving the relevant building.
- Communications from a mobile phone can be intercepted at a distance of up to .... km.
- Closed-circuit communications can be intercepted within the USW-radio range.
____________________
8 Manfred Fink, Eavesdropping on the economy - Interception risks and techniques - prevention and protection, Richard Boorberg Verlag, Stuttgart, 1996.
Conditions for the use of espionage equipment are ideal on the spot, since the interception measures can be focused on one person or one target and almost every communication can be intercepted. The only disadvantage may be the risk of detection in connection with the planting of bugs or the tapping of cables.
Today, various media are available for all forms of intercontinental communication (voice, fax and data). The scope for a worldwide interception system is restricted by two factors:
- restricted access to the communication medium- the need to filter out the relevant communication from a huge mass of communications taking place at the same time.
3.3.1. Access to communication media
3.3.1.1. Cable communications
All forms of communication (voice, fax, e-mail, data) are transmitted by cable. Access to the cable is a prerequisite for the interception of communications of this kind. Access is certainly possible if the terminal of a cable connection is situated on the territory of a state which allows interception. In technical terms, therefore, within an individual state all communications carried by cable can be intercepted, provided this is permissible under the law. However, foreign intelligence services generally have no legal access to cables situated on the territory of other states. At best, they can gain illegal access to a specific cable, although the risk of detection is high.
From the telegraph age onwards, intercontinental cable connections have been achieved by means of underwater cables. Access to these cables is always possible at those points where they emerge from the water. If several states join forces to intercept communications, access is possible to all the terminals of the cable connections situated in those states. This was historically significant, since both the underwater telegraph cables and the first underwater coaxial telephone cables linking Europe and America landed in Newfoundland and the connections to Asia ran via Australia, because regenerators were required. Today, fibreoptic cables follow the direct route, regardless of the mountainous nature of the oceanbed and the need for regenerators, and do not pass via Australia or New Zealand.
Electric cables may also be tapped between the terminals of a connection, by means of induction (i.e. electromagnetically, by attaching a coil to the cable), without creating a direct, conductive connection. Underwater electric cables can also be tapped in this way from submarines, albeit at very high cost. This technique was employed by the USA in order to tap into a particular underwater cable laid by the USSR to transmit unencrypted commands to Soviet atomic submarines. The high costs alone rule out the comprehensive use of this technique.
In the case of the older-generation fibreoptic cables used today, inductive tapping is only possible at the regenerators. These regenerators transform the optical signal into an electrical signal, strengthen it and then transform it back into an optical signal. However, this raises the issue of how the enormous volumes of data carried on a cable of this kind can be transmitted from the point of interception to the point of evaluation without the laying of a separate fibreoptic cable. On cost grounds, the use of a submarine fitted with processing equipment is conceivable only in very rare cases, for example in wartime, with a view to intercepting the enemy's strategic military communications. In your rapporteur's view, the use of submarines for the routine surveillance of international telephone traffic can be ruled out. The new generation fibreoptic cables use erbium lasers as regenerators - interception by means of electromagnetic coupling is thus no longer possible! Communications transmitted using fibreoptic cables of this kind can thus only be intercepted at the terminals of the connection.
The practical implication for the ECHELON states (the alliance formed for the purposes of interception) is that communications can be intercepted at acceptable cost only at the terminals of the underwater cables which land on their territory, Essentially, therefore, they can only tap incoming or outgoing cable communications! In other words, their access to cable communications in Europe is restricted to the territory of the United Kingdom, since hitherto internal communications have mostly been transmitted via the domestic cable network. The privatisation of telecommunications may give rise to exceptions, but these are specific and unpredictable!
This is valid at least for telephone and fax communications. Other conditions apply to communications transmitted over the Internet via cable. The situation can be summarised as follows:
In practical terms, this means that the ECHELON states have access only to a very limited proportion of Internet communications transmitted by cable.
3.3.1.2. Radio communications9
The interceptibility of radio communications depends on the range of the electromagnetic waves employed. If the radio waves run along the surface of the earth (so-called ground waves), their range is restricted and is determined by the topography of the earth's surface, the degree to which it is built up and the amount of vegetation. If the radio waves are transmitted towards space (so-called space waves), two points a substantial distance apart can be linked by means of the reflection of the sky wave from layers of the ionosphere. Multiple reflections substantially increase the range.
____________________
9 U. Freyer, Message transmission technology, Hanser Verlag, 2000.
The range is determined by the wavelength:
Long and medium waves are used only for radio transmitters, radio beacons, etc. Short wave and above all, USW and decimetre/centimetre waves are used for military and civil radio communications.
The details outlined above show that a global communications interception system can only intercept short-wave radio transmissions. In the case of all other types of radio transmission, the interception station must be situated within a 100 km radius (e.g. on a ship, in an embassy).
The practical implication for the ECHELON States is that they can intercept only a very limited proportion of radio communications.
3.3.1.3. Communications transmitted by geostationary telecommunications satellites10
As already referred to above, decimetre and centimetre waves can very easily be focused to form microwave radio links. If a microwave radio link is set up transmitting to a telecommunications satellite in a high, geostationary orbit and the satellite receives the microwave signals, converts them and transmits them back to earth, large distances can be covered without the use of cables. The range of such a link is essentially restricted only by the fact that the satellite can receive and transmit only in a straight line. For that reason, several satellites are employed to provide worldwide coverage (for more details, see Chapter 4). If ECHELON States operate listening stations in the relevant regions of the earth, in principle they can intercept all telephone, fax and data traffic transmitted via such satellites.
____________________
10 Hans Dodel, Satellite communications, Hüthig Verlag, 1999.
3.3.1.4. Scope for interception from aircraft and ships
It has long been known that special AWACS aircraft are used for the purpose of locating other aircraft over long distances. The radar equipment in these aircraft works in conjunction with a detection system, designed to identify specific objectives, which can locate forms of electronic radiation, classify them and correlate them with radar sightings They have no separate SIGINT capability11. In contrast, the slow-flying EP-3 spy plane used by the US Navy has the capability to intercept microwave, USW and short-wave transmissions. The signals are analysed directly on board and the aircraft is used solely for military purposes12.
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11 Letter from the Minister of State in the Federal Defence Ministry, Walter Kolbow, of 14 February 2001.12 Siiddeutsche Zeitung No 80, 5.4.2001, p. 6.
In addition, surface ships, and in coastal regions, submarines are used to intercept military radio transmissions13.
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13 Jeffrey T. Richelson, The U.S. Intelligence Community, Ballinger, New York, 1989, p. 188, p. 190.
3.3.1.5. The scope for interception by spy satellites
Provided they are not focused through the use of appropriate antennae, radio waves radiate in all. directions, i.e. also into space. Low-orbit Signals Intelligence Satellites can only lock on to the target transmitter for a few minutes in each orbit. In densely populated, highly industrialised areas interception is hampered to such a degree by the high density of transmitters using similar frequencies that it is virtually impossible to filter out individual signals14. The satellites cannot be used for the continuous monitoring of civilian radio communications.
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14 Letter from the Minister of State in the Federal Defence Ministry, Walter Kolbow, of 14 February 2001.
Alongside these satellites, the USA operates so-called quasi-geostationary SIGINT satellites stationed in a high earth orbit (42 000 km)15. Unlike the geostationary telecommunications satellites, these satellites have an inclination of between 3 and 10°, an apogee of between 39 000 and 42 000 km, and a perigee of between 30 000 and 33 000 km. The satellites are thus not motionless in orbit, but move in a complex elliptical orbit, which enables them to cover a larger area of the earth in the course of one day and to locate sources of radio transmissions. This fact, and the other non-classified characteristics of the satellites, point to their use for purely military purposes.
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15 Major Andronov, Zarubezhnoye voyermoye obozreniye, No 12, 1993, p. 37-43.
The signals received are transmitted to the receiving station by means of a strongly-focused, 24 GHz downlink.
3.3.2. Scope for the automatic analysis of intercepted communications: the use of filters
When foreign communications are intercepted, no single telephone connection is monitored on. a targeted basis. Instead, some or all of the communications transmitted via the satellite or cable in question are tapped and filtered by computers employing keywords - analysis of every single communication would be completely impossible.
It is easy to filter communications transmitted along a given connection. Specific faxes and e-mails can also be singled out through the use of keywords. If the system has been trained to recognise a particular voice, communications involving that voice can be singled out16. However, according to the information available to the rapporteur the automatic recognition of words spoken by any voice is not yet possible. Moreover, the scope for filtering out is restricted by other factors: the ultimate capacity of the computers, the language problem and, above all, the limited number of analysts who can read and assess filtered messages.
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16 Information supplied privately to the rapporteur (confidential source).
When assessing the capabilities of filter systems, consideration must also be given to the fact that in the case of an interception system working on the basis of the 'vacuum-cleaner principle' those technical capabilities are spread across a range of topics. Some of the keywords relate to military security, some to drug trafficking and other forms of international crime, some to the trade in dual-use goods and some to compliance with embargoes. Some of the keywords also relate to economic activities. Any move to narrow down the range of keywords to economically interesting areas would simply run counter to the demands made on intelligence services by governments; what is more, even the end of the Cold War was not enough to prompt such a step17.
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17 Information supplied privately to the rapporteur (confidential source).
3.3.3. The example of the German Federal Intelligence Service
Department 2 of the German Federal Intelligence Service (FIS) obtains information through the interception of foreign communications. This activity was the subject of a review by the German Federal Constitutional Court. The details made public during the court proceedings2, combined with the evidence given to the Temporary Committee on 21 November 2000 by Mr Ernst Uhrlau, the coordinator for the secret services in the Federal Chancellor's Office, give an insight into the scope for obtaining intelligence by intercepting satellite communications.
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18 BverfG, I BvR 2226/94, 14 July 1999, paragraph 1.
On the basis of their right of access to cable communications or the availability of a greater number of analysts, the capabilities of other intelligence services may be greater in detail terms in given areas. In particular, the monitoring of cable traffic increases the statistical likelihood of success, but not necessarily the number of communications which can be analysed. In fundamental terms, in your rapporteur's view the example of the FIS demonstrates the capabilities and strategies employed by foreign intelligence services in connection with the monitoring of foreign communications, even if those services do not disclose such matters to the public.
The FIS endeavours, by means of strategic telecommunications monitoring, to secure information from foreign countries about foreign countries. With that aim in view, satellite transmissions are intercepted using a series of search terms (which in Germany must be authorised in advance by the so-called G10 Committee3). The relevant figures break down as follows (year 2000): of the roughly 10 million international communications routed to and from Germany every day, some 800 000 are transmitted via satellite. Just under 10% of these (75 000) are filtered through a search engine. In your rapporteur's view, this limitation is not imposed by the law (in theoretical terms, and at least prior to the proceedings before the Federal Constitutional Court, a figure of 100% would have been allowable), but derives from technical restrictions, e.g. the limited capacity for analysis.
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19 Law on the restriction of the privacy of posts and telecommunications (law on Article 10 of the Basic Law) of 13 August 1968.
The number of usable search terms is likewise restricted on technical grounds and by the need to secure authorisation. The grounds for the judgment handed down by the Federal Constitutional Court refer, alongside the purely formal search terms (connections used by foreign nationals or foreign firms abroad), to 2 000 search terms in the sphere of nuclear proliferation, 1000 in the sphere of the arms trade, 500 in the sphere of terrorism and 400 in the sphere of drug trafficking. However, the procedure has proved relatively unsuccessful in connection with terrorism and drug trafficking.
The search engine checks whether authorised search terms are used in fax and telex communications. Automatic word recognition in voice connections is not yet possible. If the search terms are not found, in technical terms the communications automatically end up in the waste bin; they cannot be analysed, owing to the lack of a legal basis. Every day, five or so communications are logged which are covered by the provisions governing the protection of the German constitution. The monitoring strategy of the FIS is geared to finding clues on which to base further monitoring activities. The monitoring of all foreign communications is not an objective. On the basis of the information available to your rapporteur, this also applies to the SIGINT activities of other foreign intelligence services.
Today, telecommunications satellites form an essential part of the global telecommunications network and have a vital role to play in the provision of television and radio programmes and multimedia services. Nevertheless, the proportion of international communications accounted for by satellite links has decreased substantially over the past few years in Central Europe. In some regions, it has even fallen below 10%20. This can be explained by the advantages offered by fibreoptic cables, which can carry a much greater volume of traffic at a higher connection quality.
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20 See the justification for the amendment to the G 10 Law in Germany.
Today, voice communications are also carried by digital systems. The capacity of digital connections routed via satellites is restricted to 1 890 ISDN-standard (64 kbits/sec) voice channels per transponder on the satellite in question. In contrast, 241 920 voice channels with the same standard can be carried on a single optical fibre. This corresponds to a ratio of 1:128!
In addition, the quality of connections routed via satellite is lower than those routed via underwater fibreoptic cables. In the case of normal voice transmissions, the loss of quality resulting from the long delay times of several hundred milliseconds is hardly noticeable - although it is perceptible. In the case of data and fax connections, which involve a complicated 'handshaking' procedure, cable offers clear advantages in terms of connection security. At the same time, however, only 15% of the world's population is connected to the global cable network21.
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21 Deutsche Telekom homepage: www.detesat.com/deutsch/
For certain applications, therefore, satellite systems will continue to offer advantages over cable in the long term. Here are some examples from the civilian sphere:
This wide range of uses to which satellites are put in the communications sphere can be explained by the following characteristics: the footprint of a single geostationary satellite can cover almost 50% of the earth's surface; impassable regions no longer pose a barrier to communication. In the area concerned, 100% of users are covered, whether on land, at sea or in the air. Satellites can be made operational within a few months, irrespective of the infrastructure available on the spot, they are more reliable than cable and can be replaced more easily.
The following characteristics of satellite communications must be regarded as drawbacks: the relatively long delay times, the path attenuation, the shorter useful life, by comparison with cable, of 12 to 15 years, the greater vulnerability to damage and the ease of interception.
As already mentioned (see Chapter 3), by using appropriate antennae microwaves can be very effectively focused, allowing cables to be replaced by microwave radio links. If the transmitting and the receiving antenna are not in line of sight, but rather, as they are on the earth, on the surface of a sphere, then from a given distance onwards the receiving antenna 'disappears' below the horizon owing to the curvature of the earth. The two antennae are thus no longer in line of sight. This would apply, for example, to an intercontinental microwave radio link between Europe and the USA. The antennae would have to be fitted to masts 1.8 km high in order for a link to be established. For this reason, an intercontinental microwave radio link of this kind is simply not feasible, setting aside the issue of the attenuation of the signal by air and water vapour. However, if a kind of mirror for the microwave radio link can be set up in a 'fixed position' high above the earth in space, large distances can be overcome, despite the curvature of the earth, just as a person can see round comers using a traffic mirror. The principle described above is made workable through the use of geostationary satellites.
4.2.1. Geostationary satellites
If a satellite is placed into a circular orbit parallel to the equator in which it circles the earth once every 24 hours, it will follow the rotation of the earth exactly. Looking up from the earth's surface, it seems to stand still at a height of 36 000 km - it has a geostationary position. Most communications and television satellites are satellites of this type.
4.2.2. The route followed by signals sent via a satellite communication link
The transmission of signals via satellite can be described as follows:
The signal coming from a cable is transmitted by an earth station equipped with a parabolic antenna to the satellite via an upward microwave radio link, the uplink. The satellite receives the signal, regenerates it and transmits it back to another Earth station via a downwards microwave radio link, the downlink. From there, the signal is transferred back to a cable network.
In the case of mobile communications, the signal is transmitted directly from the mobile communications unit to the satellite, from where it can be fed into a cable link, via an Earth station, or directly transmitted to a different mobile unit.
4.2.3. The most important satellite communication systems
If necessary, communications coming from public cable networks (not necessarily state networks) are transmitted between fixed earth stations, via satellite systems of differing scope, and then fed back into cable networks. A distinction is drawn between the following forms of satellite systems:
- global systems (e.g. INTELSAT)- regional (continental) systems (e.g. EUTELSAT)
- national systems (e.g. ITALSAT).
Most of these satellites are in a geostationary orbit; 120 private companies throughout the world operate some 1 000 satellites22.
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22 G. Thaller, Satellites in Earth Orbit, Franzisverlag, Munich, 1999.
In addition, the far northern areas of the earth are covered by satellites in a highly eccentric orbit (Russian molnyia orbits) in which the satellites are visible to users in the far north for half their orbit. Two satellites can provide full regional coverage, which is not feasible from a geostationary position above the equator.
Alongside this, the global INMARSAT system - originally established for use at sea - provides a mobile communications system by means of which satellite links can be established anywhere in the world. This system also uses geostationary satellites,
The worldwide satellite-based mobile telephone system IRIDIUM, which employed a number of satellites placed at time intervals in low orbits, recently ceased operating on economic grounds (overcapacity).
There is also a rapidly expanding market for so-called VSAT links (VSAT = very small aperture terminal). This involves the use of very small earth stations with antennae with a diameter of between 0.9 and 3.7 metres, which are operated either by firms to meet their own needs (e.g. videoconferences) or by mobile service providers to meet short-term communications requirements (e.g. in connection with meetings). In 1996, 200 000 very small earth stations were in operation around the world. Volkswagen AG operates 3 000 VSAT units, Renault 4 000, General Motors 100 000 and the largest European oil company 12 000. If the client does not arrange for encryption, communication is entirely open23.
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23 H. Dodel, private information.
4.2.3.1. Global satellite systems
Through the positioning of satellites above the Atlantic, Indian and Pacific regions, these satellite systems cover the entire globe.
INTELSAT24
INTELSAT (International Telecommunications Satellite Organisation) was founded as an authority in 1964 with an organisational structure similar to that of the UN and with the commercial purpose of providing international communications. The members of the organisation were state-owned telecommunications companies. Today, 144 governments are INTELSAT members. In 2001, INTELSAT will be privatised.
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24 INTELSAT homepage: http://www.intelsat.com
INTELSAT now operates a fleet of 19 geostationary satellites, which provide links between more than 200 countries and whose services are rented out to the members of INTELSAT. The members operate their own ground stations. Following the establishment of INTELSAT Business Service (IBS) in 1984, non-members (e.g. telephone companies, large firms, international concerns) can also use the satellites. INTELSAT offers global services such as communications, television, etc. Telecommunications are transmitted via the C-band and the Ku-band (see below).
INTELSAT satellites are the most important international telecommunications satellites, accounting for a very large proportion of the world market in such communications.
The satellites cover the Atlantic, Indian and Pacific regions (see table, Chapter 5.3).
Ten satellites are positioned above the Atlantic between 304°E and 359°E, the Indian region is covered by six satellites situated between 62°E and 110m.5°E and the Pacific region by three satellites situated between 174°E and 180°E. The high volume of traffic in the Atlantic region is covered by a number of individual satellites positioned at the relevant longitudes.
INTERSPUTNIK25
In 1971 the international communications organisation INTERSPUTNIK was founded by nine countries as an agency of the former Soviet Union with a task similar to that of INTELSAT. Today, INTERSPUTNIK is an intergovernmental organisation which the government of any country can join. It now has 24 member countries (including Germany) and some 40 users (including France and England), which are represented by their post offices or national telecommunications companies. Its headquarters are in Moscow.
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25 INTERSPUTNIK homepage: http://www.intersputnik.com
Telecommunications are transmitted via the C-band and the Ku-band (see below).
Its satellites (Gorizont, Express and Express A, owned by the Russian Federation, and LMI-1, the product of the Lockheed-Martin joint venture) also cover the entire globe: one satellite is positioned above the Atlantic region, with a second planned, three are positioned above the Indian region and two are positioned above the Pacific region (see table, Chapter 5.3).
INMARSAT
Since 1979 INMARSAT (Interim International Maritime Satellite) has provided, by means of its satellite system, worldwide mobile communications at sea, in the air and on land and an emergency radio system. ESIMARSAT was set up as an international organisation at the instigation of the International Maritime Organisation. INMARSAT has since been privatised and has its headquarters in London.
The INMARSAT system consists of nine satellites in geostationary orbits. Four of these satellites - the INMARSAT-III generation - cover the entire globe with the exception of the high polar areas. Each individual satellite covers roughly one-third of the earth's surface, Through their positioning above the four ocean regions (West and East Atlantic, Pacific, Indian Ocean), global coverage is provided. At the same time, each INMARSAT has a number of spot beams which make it possible to focus energy in areas with heavier communications traffic.
Telecommunications are transmitted via the L-band and the Ku-band (see below).
4.2.3.2. Regional satellite systems
Individual regions/continents are covered by the footprints of regional satellite systems. As a result, the communications transmitted via them can be received only in those regions.
EUTELSAT26
EUTELSAT was founded in 1977 by 17 European postal administrations with the aim of meeting Europe's specific satellite communication requirements and supporting the European space industry. It has its headquarters in Paris and some 40 member countries. EUTELSAT is to be privatised in 2001.
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26 EUTELSAT homepage: http://www.com [sic]
EUTELSAT operates 18 geostationary satellites which cover Europe, Africa and large parts of Asia and establish a link with America. The satellites are positioned between 12.5°W and 48°E. EUTELSAT mainly offers television (850 digital and analog channels) and radio (520 channels) services, but also provides communication links - primarily within Europe, including Russia, e.g. for videoconferences, for the private networks run by large undertakings (including General Motors and Fiat), for press agencies (Reuters, AFP), for providers of financial information and for mobile data transmission services.
Telecommunications are transmitted via the Ku-band.
ARABSAT27
ARABSAT is the counterpart to EUTELSAT in the Arab region and was founded in 1976. Membership is made up of 21 Arab countries. ARABSAT satellites are used both for the transmission of television services and for communications.
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27 ARABSAT homepage: http://www.arabsat. [sic]
Telecommunications are transmitted mainly via the C-band.
PALAPA28
The Indonesian PALAPA system has been in operation since 1995 and is the south-Asian counterpart to EUTELSAT. Its footprint covers Malaysia, China, Japan, India, Pakistan and other countries in the region.
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1 H.Dodel, Satellite communications, Hüthigverlag, 1999.
Telecommunications are transmitted via the C-band and the Ku-band.
4.2.3.3. National satellite systems29
Many states meet their own requirements by operating satellite systems with restricted footprints.
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2 H.Dodel and Internet research.
One purpose of the French telecommunications satellite TELECOM is to link the French departments in Africa and South America with mainland France. Telecommunications are transmitted via the C-band and the Ku-band.
ITALSAT operates telecommunications satellites which cover the whole of Italy by means of a series of restricted footprints. Reception is therefore possible only in Italy. Telecommunications are transmitted via the Ku-band.
AMOS is an Israeli satellite which primarily offers fixed communication services and whose footprint covers the Middle East. Telecommunications are transmitted via the Ku-band.
The Spanish HISPASAT satellites cover Spain and Portugal (KU-spots) and transmit Spanish television programmes to North and South America.
4.2.4. The allocation of frequencies
The International Telecommunications Union is responsible for the allocation of frequencies. For ease of organisation, for radio communication purposes the world has been divided into three regions:
1. Europe, Africa, former Soviet Union, Mongolia2. North and South America and Greenland
3. Asia, with the exception of countries in region 1, Australia and the South Pacific.
This division, which has become established over the years, was taken over for the purposes of satellite communications and has led to the positioning of large numbers of satellites in certain geostationary areas. The most important frequency bands for satellite communications are:
- the L-band (0.4 - 1.6 GHz) for mobile satellite communications, e.g. via INMARSAT;- the C-band (3.6 - 6.6 GHz) for earth stations, e.g. via INTELSAT;
- the Ku-band (10 - 20 GHz) for earth stations, e.g. INTELSAT Ku-spot and EUTELSAT;
- the Ka-band (20 - 46 GHz) for earth stations, e.g. via national satellites such as ITALSAT;
- the V-band (46 - 56 GHz) for very small earth stations (VSATs).
4.2.5. Satellite footprints
The footprint is the area on the earth covered by a satellite antenna. It may embrace up to 50% of the earth's surface, or, by means of signal focusing, be restricted to small, regional spots.
The higher the frequency of the signal emitted, the more it can be focused and the smaller the footprint becomes. The focusing of the satellite signal on smaller footprints can increase the energy of the signal. The smaller the footprint, the stronger the signal, and thus the smaller the receiving antennae may be.
This can briefly be illustrated in greater detail, taking the example of the INTELSAT satellites,
The footprints of the INTELSAT satellites are divided into various beams:
- each satellite's global beam (G) covers roughly one-third of the earth's surface;- the hemispheric beams (H) each cover an area slightly smaller than half that covered by the global beams. Zone beams (Z) are spots in particular areas of the earth; they are smaller than the hemi-beams. In addition there are so-called spot beams; these are small, precise footprints (see below).
The global, hemispheric and zone beams use C-band frequencies. The spot beams use Ku-band frequencies.
4.2.6. The size of antennae required by an earth station
Parabolic antennae are used as receiving antennae on the earth. The parabolic mirror reflects all incoming waves and focuses them. The actual receiving system is situated in the focal point of the parabolic mirror. The greater the energy of the signal at the receiving point is, the smaller the diameter of the parabolic antenna need be.
The key factor in connection with the investigations conducted for this report is that a proportion of intercontinental communications are transmitted via the C-band in the global beams of the INTELSAT satellites and other satellites (e.g. INTERSPUTNIK) and that satellite dishes with a diameter of roughly 30 m are needed to receive some of these communications (see Chapter 5). Antennae of that size were also needed for the first stations set up to intercept satellite communications, since the first generation of INTELSAT satellites had only global beams and signal transmission technology was much less sophisticated than it is today. These dishes, some of which have a diameter of more than 30 in, are still used at the stations in question, even though they are no longer required on purely technical grounds.
Today, the typical antennae required for INTELSAT communications in the C-band have a diameter of between 13 and 18 in. In some individual cases, e.g. INTELSAT 511, a larger antenna is required for the global beam. In the case of the newest INTELSAT satellites, antennae with a diameter of up to 5 in are sufficient for the zone beams in the C-band.
Antennae with a diameter of between 2 and 25 in are required to receive C-band communications from INTERSPUTNIK.
Antennae with a diameter of between 2 and 10 in are required for the Ku-spots of the INTELSAT satellites and other satellites (EUTELSAT Ku-band, AMOS Ku-band, etc.).
In the case of very small earth stations, which operate in the V-band and whose signal, by virtue of the high frequency, can be focused even more strongly than those in the Ku-band, antennae with a diameter of between 0.9 and 3.7 in are adequate (e.g. VSATs from EUTELSAT or INMARSAT).
(Missing parts to be submitted after visit to USA)
It is only natural that secret services do not disclose details of their work. Consequently there is, at least officially, no statement by the foreign intelligence services of the ECHELON states that they work together to operate a global interception system. The existence of such a system thus needs to be proved by gathering as many clues as possible, thereby building up a convincing body of evidence.
The trail of clues which constitutes evidence of this kind is made up of three elements:
- evidence that the foreign intelligence services in the ECHELON states intercept private and business communications;- evidence that interception stations operated by the ECHELON states are to be found in the parts of the world where they would be needed in the light of the technical requirements of the civilian satellite communication system;
- evidence that there is a closer than usual association between the intelligence services of these states. For the purposes of proving the existence of such an association, it is irrelevant whether this extends to the acceptance from partners of applications for the interception of messages which are then forwarded to them in the form of unevaluated raw material. This question is only relevant when investigating the hierarchies within such an interception association.
5.1.1. Evidence of interception activity on the part of foreign intelligence services
At least in democracies, intelligence services work on the basis of laws which define their purpose and/or powers. It is thus easy to prove that in many of these countries foreign intelligence services exist which intercept civilian communications. This is true of the five "ECHELON" states, which all operate such services. There is no need for specific additional proof that any of these states intercept communications entering and leaving their territory. Satellite communications also permit some intelligence communications intended for recipients abroad to be intercepted from the country's own territory. In none of the five ECHELON states is there any legal impediment to intelligence services doing this. The logic underlying the method for the strategic monitoring of foreign communications, and its at least partly overtly acknowledged purpose, make it practically certain that the intelligence services do in fact use it to that end.30
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30 Your rapporteur has evidence that this is the case. Source protected.
5.1.2. Evidence for the existence of stations in the necessary geographical areas
The only restriction on the attempt to build up worldwide monitoring of satellite communications arises from the technical constraints imposed by these communications themselves. There is no place from which all satellite communications can be intercepted (see point 4).
It would be possible for a worldwide interception system to be constructed, subject to three conditions:
- the operator has national territory of its own in all the necessary parts of the world;- the operator has, in all the necessary parts of the world, either national territory of its own or a right of access entitling it to operate or share the use of stations;
- the operator is a group of states which has formed an intelligence association and operates the system in the necessary parts of the world.
None of the ECHELON states would be able to operate a global system on its own. The USA has, at least formally, no colonies. Canada, Australia and New Zealand also have no territory outside the narrower confines of their countries, and the UK would also not be able to operate a global interception system on its own (see Chapter 6).
5.1.3. Evidence of a close intelligence association
On the other hand it has not been disclosed whether and to what extent the ECHELON states cooperate with one another in the intelligence field. Normally cooperation between intelligence services takes place bilaterally and on the basis of an exchange of evaluated material. A multilateral union is in itself something very unusual; if one adds to this the regular exchange of raw material, this would be a qualitatively new form of cooperation. The existence of such an association can only be proved on the basis of clues.
5.2.1. Criterion 1: Accessibility of the installation
Installations with large antennae belonging to the post office, broadcasters or research institutions are accessible to visitors, at least by appointment; interception stations are not. They are generally operated, at least, in name, by the military, which also carries out the technical work of interception. For the NSA, for example, the stations are operated by the Naval Security Group (NAVSECGRU) or the Air Intelligence Agency (AIA). In the British stations, the RAF operates the installations for the British GCHQ intelligence service. This arrangement enables the installations to be guarded with military efficiency and at the same time serves as cover.
5.2.2. Criterion 2: Type of antenna
Various types of antennae are used in the installations which fulfil criterion 1, each with a different characteristic shape, which provides evidence as to tile purpose of the interception station. Arrangements of tall rod antennae in a large-diameter circle (Wullenweber antennae), for example, are used for locating the direction of radio signals. Similarly, circular arrangements of rhombic-shaped antennae (Pusher antennae) serve the same purpose. Omnidirectional antennae, which look like giant conventional TV antennae, are used to intercept non-directional radio signals. To receive satellite signals, however, only parabolic antennae are used. If the parabolic antennae are standing on an open site, it is possible to calculate on the basis of their position, their elevation and their compass (azimuth) angle which satellite is being received. This is possible, for example, in Morwenstow (UK), Yakima (USA) or Sugar Grove (USA). However, most often parabolic antennae are concealed under spherical white covers known as radomes: these protect the antennae, but also conceal which direction they are pointing in.
If parabolic antennae or radomes are positioned on an intercepting station site, one may be certain that they are receiving signals from satellites, though this does not prove what type of signals these are.
5.2.3. Criterion 3: Size of antenna
Satellite receiving antennae on a site which meets criterion 1 may be intended for various purposes:
- receiving station for military communications;- receiving station for spy satellites (pictures, radar);
- receiving station for military SIGINT satellites;
- receiving station for interception of civilian communications satellites.
It is not possible to tell from outside what function these antennae or radomes serve. However, there are minimum sizes, dictated by technical requirements, for antennae intended to receive the 'global beam' in the C-band of satellite-based civilian international communications. The first generation of these satellites needed antennae with a diameter of 25-30 in; nowadays 15-18 in is enough. The automatic computer filtering of signals received calls for the highest possible signal quality, so for intelligence purposes an antenna at the upper end of the scale is chosen. Because the antennae are mounted on stands, the diameter of the radomes is even greater than the diameter of the antennae.
5.2.4 Conclusion
As far as your rapporteur knows there is no military application for antennae of this size. Consequently, if they are found on a site meeting criterion 1, it may be concluded that civilian satellite communications are being intercepted on that site.
[No text.]
[No text.]
5.5.1. Nature of documents
Under the 1966 Freedom of Information Acts (5 USC § 552) and the Department of Defense's 1997 FOIA Regulation 5400.7-R, formerly classified documents were declassified and thus made available to the public.
The documents concerning the National Security Archive, founded in 1985 at George Washington University in Washington DC, are accessible to the public. The author Jeffrey Richelson, a former member of the National Security Archive, has published 16 documents on the Internet which give an insight into the emergence, development, management and mandate of the National Security Agency (NSA).31 In two of these documents, ECHELON is named. These documents have repeatedly been cited by various authors writing about ECHELON as evidence for the existence of the ECHELON global espionage system. The documents made available by Richelson also include some which confirm the existence of the National Reconnaissance Office and its function as a manager and operator of SIGINT satellites.32
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31 http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB23/index.html
5.5.2. Content of documents
The documents contain fragmentary descriptions of or references to the following topics:
5.5.2.1. Purpose and structure of the NSA (Documents 1, 4, 10, 11 and 16)
In National Security Council Intelligence Directive 9 (NSCID 9) of 10 March 1950 the term 'foreign communications' is defined for COMINT purposes: it comprises any government communications in the widest sense (not only military) and all other communications which might contain information of military, political, scientific or economic value.
The Directive (NSCID 9 rev. 29.12.52) expressly states that the FBI alone is responsible for internal security.
The Department of Defense (DoD) Directive of 23 December 1991 on the NSA and the Central Security Service (CSS) outlines the concept for the NSA as follows:
- The NSA is a separately organised office within the DoD headed by the Secretary of Defense;- The NSA's task is firstly to fulfil the USA's SIGINT mission, and secondly to provide secure communications systems for all departments and offices;
- The NSA's SIGINT activities do not cover the production and distribution of processed intelligence: this is the sphere of other departments and offices.
The 1991 DoD Directive also sketches out the structure of the NSA and CSS,
In its statement to the House Permanent Select Committee on Intelligence on 12 April 2000, Gen. Michael Hayden, the NSA Director, defined the NSA's tasks as follows:
- Collecting foreign communications for the military and for policymakers by means of electronic surveillance;- Supplying intelligence for US Government consumers about international terrorism, drugs and arms proliferation;
- The NSA does not have the task of collecting all electronic communications.
- The NSA may only pass on information to recipients authorised by government, not direct to US firms.
In a memorandum by Vice-Admiral W.O. Studeman of the US Navy on behalf of the Government on 8 April 1992, reference was made to the increasingly global access of the NSA in addition to 'support of military operations'.
5.5.2.2. Powers of the Intelligence Agencies (Document 7)
It is clear from US Signals Intelligence Directive 18 (USSID 18) that both cable and radio signals are intercepted.
5.5.2.3. Cooperation with other services (Documents 2a and 2b)
The duties of the US Communications Intelligence Board include monitoring all 'arrangements' with foreign governments in the COMINT field. One of the tasks of the NSA Director is to arrange all contacts with foreign COMINT services.
5.5.2.4. Mention of units active in 'ECHELON sites' (Documents 9 and 12)
The NAVSECGRU Instructions C5450.48A describe the duties, function and purpose of the Naval Security Group Activity (NAVSECGRUACT), 544 th Intelligence Group, in Sugar Grove, West Virginia. They state that one particular task is to 'maintain and operate an ECHELON site'; they also mention that one task is the processing of intelligence information.
In the document 'History of the Air Intelligence Agency - 1 January to 31 December 1994 (RCS:HAF-HO(A&SA) 7101 Volume 1) the Air Intelligence Agency (AIA), Detachment 2 and 3, is mentioned under the heading 'Activation of ECHELON Units'.
These documents do not give any information on what an ECHELON site is, what is done at an ECHELON site, or what the code name ECHELON stands for. These documents do not reveal anything about the UKUSA Agreement.
5.5.2.5. Mention of Stations (Documents 6, 9 and 12)
- Sugar Grove, West Virginia in the NAVSECGRU Instructions C5450.48A- Misawa Air Base, Japan, in History of the Air Intelligence Agency - 1 January to 31 December 1994 (RCS:HAF-HO(A&SA)7101 Volume 1)
- Puerto Rico (i.e. Sabana Seca), ibid.
- Guam, ibid.
- Yakima, Washington, ibid.
- Fort Meade, Maryland; a COMINT report by the NSA of 31 August 1971 from Fort George G. Meade, Maryland confirms the COMINT activities there.
5.5.2.6. Protection of the privacy of US citizens (Documents 7, 7 a to f, 11 and 16)
The NAVSECGRU Instructions C5450.48A state that the privacy of citizens must be protected.
Various documents state that the privacy of American citizens must be protected and how this is to be done (Baker, General Counsel, NSA, letter of 9 September 1992, US Signals Intelligence Directive (USSID) 18, 20 October 1980, and various supplements.33
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33 Dissemination of US Government Organisations and Officials, Memorandum 5 February 1993; Reporting Guidance on References to the First Lady, 9 July 1993; Reporting Guidance on Former President Carter's Involvement in the Bosnian Peace Process, 15 December 1994; Understanding USSID 18, 30 September 1997; USSID 18 Guide, 14 February 1998.NSA/US Identities in SIGINT, March 1994: Statement for the record of NSA Director Lt Gen Michael V. Hayden, USAF, 12 April 2000.
5.5.2.7. Definitions (Documents 4, 5 a and 7)
The Department of Defense Directive of 23 December 1991 provides precise definitions of SIGINT, COMINT, ELINT and TELINT, as does the National Security Council Intelligence Directive No 6 of 17 February 1972.
According to these, COMINT means the collection and processing of foreign communications (passed by electromagnetic means) up to and including the interception and processing of unencrypted written communications, press and propaganda unless encrypted.
5.5.3. Summary
1. As long as 50 years ago there was interest in information not only from the political and security spheres but also from the fields of science and economics.
2. The documents prove that the NSA works together with other services in the field of COMINT.
3. The documents which reveal information about how the NSA is organised, what tasks it has and that it is responsible to the Department of Defense, do not add any essential information beyond what can be gathered from publicly accessible sources on the NSA home page.
4. Cable communications may be intercepted.
5. The 544 th Intelligence Group and Detachment 2 and 3 of the Air Intelligence Agency are involved in the collection of intelligence information.
6. The term 'ECHELON' appears in a number of contexts.
7. Sugar Grove in West Virginia, Misawa Air Base in Japan, Puerto Rica (i.e. Sabana Seca), Guam, and Yakima in Washington State are named as SIGINT stations.
8. The documents provide information on how the privacy of American citizens should be protected.
The documents do not constitute proof, but provide compelling clues which enable conclusions to be drawn when taken in conjunction with other evidence.
5.6.1. Nicky Hager's book
The ECHELON system was first described in detail in Nicky Hager's book 'Secret Powers - New Zealand's role in the international spy network', published in 1996. According to Hager, the system's origins can be traced back to 1947, when, following their cooperation in the war, the UK and USA concluded an agreement on continuing COMINT activities on a joint basis around the globe, under which the two countries were to cooperate on the creation of an interception system providing the maximum possible global coverage, share the special installations required and the associated costs and pool the fruits of their labours. Canada, Australia and New Zealand subsequently signed up to the UKUSA agreement.
Hager says that interception of satellite communications is now the system's core activity. The interception by ground stations of messages sent via Intel satellites - the first global satellite communication system34 - began in the 1970s. Such messages are then searched by computer for specific keywords and/or addresses in order to filter out the relevant communications. Surveillance activity was later extended to other satellites, such as those of Inmarsat35, which concentrated on maritime communications.
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34 See http://www.intelsat.int/index.htm
In his book, Hager points out that the interception of satellite communications represents only a small, albeit important, part of the eavesdropping system, for there are also numerous -facilities for monitoring microwave and cable links, although these are less well documented and their existence is more difficult to prove, since, unlike ground stations, they are rather inconspicuous. ECHELON is thus synonymous with a global eavesdropping system.
5.6.2. Duncan Campbell
In STOA Study 2/5 of 1999, which provides an in-depth analysis of the technical aspects, Duncan Campbell described in detail how any medium used for transmitting information can be intercepted. In one of his latest writings, however, he makes it clear that even ECHELON has its limits and that the initial view that total monitoring of communications was possible has turned out to be erroneous. 'Neither ECHELON nor the signals intelligence ('sigint') system of which it is part can do this. Nor is equipment available with the capacity to process and recognise the content of every speech message or telephone call.'36
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36 Duncan Campbell, Inside ECHELON. The history, structure and function of the global surveillance system known as ECHELON, 1
5.6.3. Jeff Richelson
awaiting results of the discussions with him in the USA
5.6.4. James Bamford
to follow
5.6.5. Bo Elkjaer and Kenan Seeberg
These two Danish journalists told the Committee on 22 January 2001 that ECHELON was already very advanced in the 1980s and that Denmark had cooperated with the USA since 1984.
5.7.1. Margaret Newsham (former NSA employee)
Margaret Newsham37 was employed from 1974 to 1984 by Ford and Lockheed and says she worked for the NSA during that period. She had been trained for her work at NSA Headquarters at Fort George Meade in Maryland, USA, and had been deployed from 1977 to 1978 at Menwith Hill, the US ground station on UK territory. There she established that a conversation conducted by US Senator Strohm Thurmond was being intercepted. As early as 1978, ECHELON was capable of intercepting telecommunications messages to and from a particular person via satellite.
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37 See Bo Elkjaer, Kenan Seeberg, ECHELON was My baby - Interview with Margaret Newsham, Ekstra Bladet, 17.1.1999
As regards her role in the NSA, she was responsible for designing systems and programs, configuring them and preparing them for operation on powerful computers. The software programs were named SILKWORTH and SIRE, whilst ECHELON was the name of the network.
5.7.2. Wayne Madsen (former NSA employee)
Wayne Madsen38, former NSA employee, also confirms the existence of ECHELON. He is of the opinion that economic intelligence gathering has top priority and is used to the advantage of US companies. He fears in particular that ECHELON could spy on NGOs such as Amnesty International or Greenpeace. He argues that the NSA had to concede that it held more than 1000 pages of information on Princess Diana, because her conduct ran counter to US policy, owing to her campaign against land mines.
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38 CBS TV interview '60 Minutes', 27.2.2000; http://cryptome.org/echelon-60min.htm
5.7.3. Mike Frost (former Canadian secret service officer)
Mike Frost worked for more than 20 years for the CSE, the Canadian secret service39. The listening post in Ottawa was just one part of a worldwide network of spy stations.40 In an interview with CBS, he said that all over the world, every day, telephone conversations, emails and faxes are monitored by ECHELON, a secret government surveillance network.41 This also included civilian communications. In an interview he gave for an Australian TV channel, he said by way of example that the CSE actually had entered the name and telephone number of a woman in a database of possible terrorists because she had used an ambiguous phrase in a harmless telephone conversation with a friend. When searching through intercepted communications, the computer had found the keyword and reproduced the conversation. The analyst was unsure and therefore recorded her personal details.42
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39 Communication Security Establishment, subordinate to the Canadian Ministry of Defense, engaged in SIGINT40 CBS TV interview'60 Minutes', 27.2.2000; http://cryptome.org/echelon-60min.htm
41 Rötzer, Die NSA geht wegen ECHELON an die Offentlichkeit; http://www.heise.de/bin/tp/issue/download.cgi?artikelnr=6633&rub_ordnerspecial
42 CBS TV interview '60 Minutes', 27.2.2000; http://cryptome.org/echelon-60min.htm
The intelligence services of the ECHELON community also helped each other by spying on each other's behalf so that at least local intelligence services could not be accused of anything. For instance, GCHQ asked the CSE to spy on two British government ministers when Prime Minister Thatcher wanted it to tell her if they were on her side.43
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43 Interview on the Australian Channel 9 on 23.3.1999; http://www.geocities.com/CapitolHill/Senate/8789/sunday1.htm
5.7.4. Fred Stock (former Canadian secret service employee)
Fred Stock says he was expelled from CSE, the Canadian secret service, in 1993 because he had criticised the new emphasis on economic intelligence and civil targets. The communications intercepted contained information on trade with other countries, including negotiations on NAFTA, Chinese purchases of cereals and French arms sales. Stock says the service also routinely received communications concerning environmental protests by Greenpeace vessels on the high seas.44
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44 Bronskill, Canada a key snooper in huge spy network, Ottawa Citizen, 24.10.2000, http://www.ottawacitizen.com/national/990522/2630510.html
5.8.1. USA
James Woolsey, the former director of the CIA, said at a press conference45 he gave at the request of US State Department, that the USA did conduct espionage operations in continental Europe. However, 95% of 'economic intelligence' was obtained by evaluating publicly accessible information sources, and only 5% came from stolen secrets. Espionage was used to secure economic intelligence from other countries where compliance with sanctions and dual-use goods were concerned, and in order to combat bribery in connection with the award of contracts. Such information is not, however, passed to US companies. Woolsey stressed that, even if espionage yielded economically usable 'Intelligence, it would take an analyst a very long time to analyse the large volume of available information, and that it would be wrong to use their time on spying on friendly trading partners. He also pointed out that, even if they did so, complex international interlinkages would make it difficult to decide which companies were US companies and thus should be allowed to have the information.
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45 Transcript, 7.3.2000, http://cryptome.org/echelon-cia.htm
In a later article for the Wall Street Journal Europe46, Woolsey again said that the USA was spying on Europe, but only in order to expose cases of bribery. He stated quite clearly that the USA used computers to perform keyword searches of data.
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46 James Woolsey, Why America Spies on its Allies, The Wall Street Journal, 22.3.2000, 31
5.8.2.
UK Answers to various questions in the House of Commons47 reveal that the station at RAF Menwith Hill is owned by the UK Ministry of Defence, but is made available to the US Department of Defense, specifically the NSA48, which provides the chief of station,49 as a communications facility.50 In mid-2000, there were 415 US military, 5 UK military, 989 US civilian and 392 UK civilian personnel working at RAF Menwith Hill, excluding GCHQ staff present on the site.51 The presence of US military personnel is governed by the North Atlantic Treaty and special confidential52 administrative arrangements appropriate to the relationship which exists between the governments of the UK and the USA for the purposes of common defence.53 The station is an integral part of the US Department of Defense's worldwide network which supports the interests of the UK, the USA and NATO.54
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47 Commons Written Answers, House of Commons Hansard Debates48 12.7.1995.
49 25.10.1994
50 3.12.1997
51 12.5.2000
52 12.7.1995
53 8.3.1999, 6.7.1999
54 3.12.1997
In the Intelligence and Security Committee's 1999/2000 annual report, emphasis is specifically placed on the value of the close cooperation under the UKUSA agreement, as reflected in the quality of the intelligence gathered. It is pointed out in particular that when the NSA's equipment was out of action for some three days, US customers as well as UK customers were served direct from GCHQ.55
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55 Intelligence and Security Committee, Annual Report 1999-2000, para. 14, presented to parliament by the Prime Minister in November 2000
5.8.3. Australia56
Martin Brady, Director of the Australian intelligence service DSD57, confirmed in a letter to the 'Sunday' programme on Australia's Channel 9 that DSD cooperated with other intelligence services as part of the UKUSA agreement. In the same letter, he stressed that all Australia's intelligence facilities were operated by Australian services alone or jointly with US services. Where use of such facilities is shared, the Australian Government has full knowledge of all activities and Australian personnel is involved at all levels.58
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56 http://sunday.ninemsn.com/01_cover_stories/transcript_335.asp; http://sunday.ninemsn.com/01_cover_stories/article_335.asp57 Defence Signals Directorate, Australian intelligence service engaged in SIGINT
58 Letter of 16.3.1999 from Martin Brady, Director of the DSD, to Ross Coulthart, 'Sunday' programme; see also: http://sunday.ninemsn.com/01_cover_stories/transcript_335.asp; http://sunday.ninemsn.com/01_cover_stories/article_335.asp
5.8.4. Netherlands
On 19 January 2001, the Netherlands Minister for Defence presented a report to the Netherlands Parliament on technical and legal aspects of the global surveillance of modem telecommunications systems.59 In it, the Netherlands Government takes the view that, although it had no information of its own on this matter, it was highly likely, on the basis of available third-party information, that the ECHELON network did exist, but that there were also other systems with the same capabilities. The Netherlands Government came to the conclusion that global interception of communications systems was not confined to countries involved in the ECHELON system, but was also carried on by government authorities of other countries.
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59 Brief aan de Tweede Kamer betreffende 'Het grootschalige afluisteren van moderne telecommunicatiesystemen', 19.1.2001
5.8.5. Italy
Luigi Ramponi, former director of SISMI, the Italian intelligence service, leaves no room for doubt in the interview he gave for 'Il Mondo' that ECHELON does exist.60 Ramponi says explicitly that, as Head of SISMI, he knew of ECHELON's existence. Since 1992, he had been kept in the picture about intensive interception of low-, medium- and high frequencies. When he joined SISMI in 1991, most dealings were with the UK and the USA.
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60 Francesco Sorti, Dossier. exclusivo. caso ECHELON. parla Luigi Ratnponi. Anche I politici sapevano, il mondo, 17.4.1998
5.9.1. Reports by the Comité Permanent R, Belgium's monitoring committee
The Belgian monitoring committee, the Comité Permanent R, has already discussed ECHELON in two reports.
The third chapter of its 1999 activity report was devoted to how the Belgian intelligence services are reacting to the possible existence of an ECHELON system of communications surveillance. The 15-page report concludes that both the Belgian intelligence services, the Sûreté de l'Etat and the Service General du Renseignement (SGR), only found out about ECHELON through documents in the public domain.
The second report (rapport complémentaire d'activités 1999) deals with the ECHELON system in much greater detail. It gives a view on the STOA study and devotes one section to explaining the technical and legal background to telecommunications monitoring. It concludes that ECHELON does in fact exist and is also in a position to listen in to all information carried by satellite (approximately 1% of total international telephone communications), in that it searches for keywords, and that its decoding capacity is much greater than the Americans claim. Doubt remains about the accuracy of statements that no industrial espionage is carried out at Menwith Hill. The report makes it clear that it is impossible to ascertain with any certainty what ECHELON does or does not do.
5.9.2. Report by the French National Assembly's Committee on National Defence
The French National Assembly's Committee on National Defence has drawn up a report on surveillance systems61.
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61 Rapport d'information déposé en application de l'article 145 du règlement par la commission de la défense nationale et des forces armées, sur les systèmes de surveillance et d'interception électroniques pouvant mettre en cause la sécurité nationale, No 2623 Assemblée nationale, enregistré à la Présidence de l'Assemblée nationale le 11 Octobre 2000.
Following a detailed discussion of a wide variety of aspects, the rapporteur, Arthur Paecht, comes to the conclusion that ECHELON exists and is, in his view, the only known multinational surveillance system. The system's capacities are real but have reached their limits not only because the expenditure can no longer keep pace with the explosion in communications but also because certain targets now know how to protect themselves.
The ECHELON system has moved away from its original goals, which were linked to the Cold War, and this means that it is not impossible that the intelligence gathered may be used for political and industrial purposes against other Nato states.
ECHELON might indeed present a danger to fundamental freedoms and in this context it raises numerous problems that demand appropriate answers. It would be wrong to imagine that the ECHELON member states will give up their activities. On the contrary, there are several indications of a new system being created with new partners as a way of acquiring additional resources to overcome ECHELON's limits.
6.1.1. Technical and geographical requirements
Listening in to international communications transmitted by first-generation satellites requires receiving stations in the Atlantic, the Indian Ocean and the Pacific area. In the case of the newer generation of satellites, which can transmit to sub-regions, further requirements with regard to the geographical position of listening stations would have to be met if all communications via satellite were to be intercepted.
Any other interception system operating on a global scale would be forced to establish its stations outside the territory of the ECHELON states.
6.1.2. Political and economic requirements
The establishment of an interception system of this kind operating on a global scale would, however, also have to make economic and political sense for the operator or operators. The beneficiary or beneficiaries of such a system would have to have global economic, military or other security interests, or at least believe that they were among the world's superpowers. Consequently, we are essentially talking only about China and the G-8 States, excluding the United States and the UK.
France has its own territories, departments and regional authorities in all three areas listed above.
In the Atlantic, there is St Pierre and Miquelon east of Canada (65°W/47°N), Guadeloupe, north-east of South America (61°W/16°N), and Martinique (60°W/14°N) and French Guyana on the north-east coast of South America (52°W/5°N).
In the Indian Ocean there is Mayotte to the east of southern Africa (45°E/12°S) and Réunion (55°E/20°S) and to the very south the French Southern and Antarctic Territories. In the Pacific there is New Caledonia (165°E/20°S), the Wallis and Futuna Islands (176°W/12°S) and French Polynesia (150°W/16°S).
Very little information is available about possible stations operated by the French intelligence service (DGSE) in these overseas areas. According to reports by French journalists62, there are stations in Kourou in French Guyana and in Mayotte. No details are available as to the size of the stations, the number of satellite antennae or their size. There are apparently other stations in France at Domme near Bordeaux and at Alluetts-le-Roi near Paris. Vincent Jauvert estimates that there is a total of 30 satellite dishes. The author Schmidt-Enboom63 claims that a station is also operating in New Caledonia.
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62 Jean Guisnel, Léspionage n'ést plus un secret, The Tocqueville Connection, 10.7.1998. Vincent Jauvert, Espionnage comment la France, Le Nouvel Observateur, 5.4.2001, No 1900, p. 14 et seq.63 E.Schmidt-Eenboom, in: Streng Geheim, Museumsstiftung Post und Telekommunikation, Heidelberg 1999, p. 180.
Theoretically, France could also operate a global interception system. However, there is insufficient information available in the public domain for your rapporteur to seriously assume that this is the case.
The Russian intelligence service FAPSI, which is responsible for communications security and SIGINT, apparently operates ground stations in Latvia, Vietnam and Cuba in cooperation with the Russian military intelligence service GRU.
In the Atlantic area, the Federation of American Scientists claims that there is a facility at Lourdes in Cuba (82' W/23' N), which is operated jointly with the Cuban intelligence service. In the Indian Ocean there are stations in Russia, about which no further information is available, and a station in Skundra in Latvia. In the Pacific there is apparently a station at Cam Rank Bay in North Vietnam. No detailed information is available about the stations as far as the number and size of the antennae are concerned.
Together with the stations available in Russia itself, global coverage is theoretically possible. However, here too, the information available is insufficient to draw any firm conclusions.
Neither the other G-8 States or China have territories or close allies in the parts of the world that would enable them to operate a global interception system.
The committee's remit includes the specific task of examining the compatibility of an 'ECHELON' type communications interception system with Community law64. In particular, it is to examine whether such a system complies with the two data protection directives 95/46/EC and 97/66/EC, with Article 286 TEC, and Article 8(2) TEU.
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64 See Chapter 1, 1.3 above.
This matter has to be considered from two different angles. The first arises from the circumstantial evidence set out in Chapter 5, which indicates that the system known as 'ECHELON'was designed as a communications interception system to provide the US, Canadian, Australian, New Zealand and British secret services with information about events abroad by collecting and evaluating communications data. As such, it is a conventional espionage tool used by foreign intelligence services65. Initially, therefore, we will examine the compatibility of such an intelligence system with Union law.
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65 See Chapter 2.
In addition, the STOA report by Duncan Campbell alleges that the system has been misused for purposes of obtaining competitive intelligence, causing serious losses to the industries of European countries. Furthermore, there are statements by the former CIA Director R. James Woolsey, that although the USA was spying on European firms, this was only to restore a level playing field since contracts had only been secured as a result of bribery66. If it is true that the system is used to obtain competitive intelligence, the further issue arises of whether this is compatible with Community law. This second aspect will therefore be discussed separately.
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66 See Chapters 5, 5.6. and 5.8.
7.2.1. Compatibility with EC law
In principle, activities and measures undertaken for the purposes of state security or law enforcement do not fall within the scope of the EC Treaty. As, on the basis of the principle of limited authority, the European Community can only take action where a corresponding competence has been conferred on it, the Community rightly excluded these areas from the scope of application of the data protection directives, which are based on the EC Treaty, and in particular Article 95 (ex-Article 100a) thereof Directive 59/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data67 and Directive 97/66/EC concerning the processing of personal data and the protection of 4 privacy in the telecommunications sector68 do not apply to 'the processing of data69/activities70 concerning public security, defence, state security (including the economic well-being of the state when the activities relate to state security matters) and the activities of the state in areas of criminal law'. Exactly the same wording has been used in the proposal for a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector71 which is currently before Parliament. The involvement of a Member State in an interception system for the purposes of State security cannot therefore be in breach of the data protection directives.
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67 OJ L 281 1995 p. 31.68 OJ L 24 1998 p. 1.
69 Art 3(2) Regulation 95/46.
70 Art 1 (1) Regulation 97/66.
71 COM (2000) 385 final, OJ C 365 E/223.
Similarly, there can be no breach of Article 286 TEC, which extends the scope of the data protection directives to data processing by Community institutions and bodies. The same applies to Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data72. This regulation is also applicable only in so far as the bodies are acting within the framework of the EC Treaty73. To avoid misunderstandings, it should be clearly emphasised at this point that no sources whatsoever contend that there is any involvement of Community bodies and institutions in a surveillance system and the rapporteur has absolutely no grounds for assuming this to be the case.
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72 Regulation (EQ No 45/200 1, OJ L 8, p. 1.73 Art 3(1) and Recital 15 "Where such processing is carried out by Community institutions or bodies in the exercise of activities falling outside the scope of this Regulation, in particular those laid down in Titles V and VI of the Treaty on European Union, the protection of individuals' fundamental rights and freedoms shall be ensured with due regard to Article 6 of the Treaty on European Union."
7.2.2. Compatibility with other EU law
As far as the areas covered by Title V (common foreign and security policy) and Title VI (police and judicial cooperation in criminal matters) are concerned, there are no data protection provisions comparable to those of the EC directives. The European Parliament has already pointed out on numerous occasions that action is much needed in this area74.
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74 See, for example, para 25 of the resolution on the draft action plan of the Council and Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice (13 844/98 - C4-0692/98 - 98/0923(CNS)), OJ C 219, 30.7.1999, p. 61 et seq.
The protection of the fundamental rights and freedoms of the individual in these spheres is ensured only by Articles 6 and 7, in particular by Article 6(2) TEU, in which the Union undertakes to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and as they derive from the constitutional traditions common to the Member States. Not only are fundamental rights, and in particular the ECHR, binding on the Member States (see Chapter 8), but the Union is also required to comply with fundamental rights in its legislation and administration. However, since at EU level there are still no regulations concerning the admissibility of the interception of telecommunications for security or intelligence purposes75, the issue of infringement of Article 6(2) TEU does not yet arise.
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75 In the area of telecommunications surveillance there are currently only two EU legislative acts, neither of which covers the question of admissibility:- Council resolution of 17 January 1995 on the lawful interception of telecommunications (OJ C 329, 4.11.1996), the annex to which sets out the technical requirements relating to the lawful interception of modem telecommunications systems, and
- Council Act of 29 May 2000 establishing, in accordance with Article 34 of the Treaty on European Union, the Convention on mutual assistance in criminal matters between the Member States of the European Union (OJ 2000 C 197/1, Art 17), which regulates the conditions under which mutual assistance in criminal matters with regard to telecommunications interception is possible. These provisions in no way curtail the rights of the subjects of tapping as the Member State in which the subject is to be found has the right to refuse mutual assistance if it is not authorised under national law.
7.3. The question of compatibility in the event of misuse of the system for industrial espionage
If a Member State were to promote the use of an interception system, which was also used for industrial espionage, by allowing its own intelligence service to operate such a system or by giving foreign intelligence services access to its territory for this purpose, it would undoubtedly constitute a breach of EC law. Under Article 10 TEC, the Member States are committed to acting in good faith and, in particular, from abstaining from any measure which could jeopardise the attainment of the objectives of the Treaty. Even if the interception of telecommunications is not carried out for the benefit of the domestic industry (which would, in fact, be equivalent in effect to State aid, and thus in breach of Article 87 TEC), but for the benefit of a non-member state, activities of this kind would be fundamentally at odds with the concept of a common market underpinning the EC Treaty, as it would amount to a distortion of competition.
In the opinion of the rapporteur, action of this kind would also be an infringement of the data protection directives for the telecommunications sphere76, since the question of the applicability of the directive has to be resolved from a functional rather than an organisational point of view. This follows not only from the wording of the regulation as regards its scope, but also from the sense of the law. If intelligence services use their capability for industrial espionage, these activities are not being carried out for the purposes of security or law enforcement but for other purposes and would consequently fall fully within the scope of the directive. Article 5 of the directive requires the Member States to ensure the confidentiality of communications. 'In particular, they shall prohibit listening, tapping, storage or other kinds of interception or surveillance of communications, by others than users'. Pursuant to Article 14, exceptions may be made only where they are necessary to safeguard national security, defence and law enforcement. As industrial espionage is no justification for an exception, it would, in this case, constitute an infringement of Community law.
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76 Regulation 97/66 EC, OJ L 24 1998, p. 1.
To sum up, it can therefore be said that the current legal position is that an ECHELON type intelligence system is not in breach of Union law because it does not concern the aspects of Union law that w