W/r/t “right and wrong” and the underlying program, here’s some informatio to chew on, relating to what European countries do to their citizens w/r/t wiretapping. Again, this doesn’t and shouldn’t affect the U.S. legal analysis (which I wish people would remember applies to other topics for which they like European laws as well…), but it provides a relativistic measure for “right” and “wrong” w/r/t wiretapping:
Wiretapping, European-Style.
Think Bush’s warrantless NSA surveillance is bad? Wait till you hear what the British government does.
By Eric Weiner
Updated Tuesday, Feb. 14, 2006, at 6:39 AM ET
For Europeans, scolding the Bush administration for everything from Guantanamo to the Iraq War to secret CIA prisons has become a full-time job. But when it comes to the American scandal over President Bush’s warrantless wiretaps, there’s been a curious reaction from the other side of the Atlantic: silence. Where is the European outrage?
European restraint may arise from a fear of hypocrisy. The fact is that in much of Europe wiretapping is de rigueur?practiced more regularly and with less oversight than in the United States. Most Europeans either don’t know about this or, more likely, simply don’t care.
The extensive European taps are not new developments, made in the heat of passion after the London and Madrid bombings. European governments have been bugging phones for decades. In theory, the European Convention on Human Rights forbids “arbitrary wiretapping,” but, as we’ve learned in the United States, arbitrary is in the ear of the wiretapper.
he three worst offenders are not countries you would suspect of playing fast and loose with civil liberties: Britain, Italy, and the Netherlands. Italian officials conduct tens of thousands of wiretaps each year. Technically, judicial approval is needed but since judges in Italy are “investigative,” meaning they act more like our prosecutors, there is essentially no check on law enforcement’s ability to eavesdrop.
In Britain, police have an even easier time tapping phones. The home secretary, a Cabinet minister, approves all wiretaps. Judges have nothing to do with it.
Or, to put it in American terms, imagine Homeland Secretary Michael Chertoff authorizing wiretaps of anyone he deems fit?only without the pesky questions from the media and Congress.
Gus Hosein, an analyst with Privacy International, calculates that, given the number of wiretaps in the U.K., the home secretary approves a new wiretap every few seconds. “Obviously, it’s impossible to give it the attention it needs,” says Hosein. Britain did recently establish an Interception of Communications Commissioner, but he has limited authority; his main job is tallying the number of annual wiretaps. The only Brits safe from wiretapping are members of Parliament, though after the London bombing, there is now a move afoot to revoke their immunity.
Britain’s lax attitude toward telephone privacy dates back to the 1920s, when the British government owned the phone company. There was no need for court approval of wiretaps, since, in a way, the government would be asking itself for that approval.
The Netherlands has the highest rate of wiretapping of any European country?a surprising fact, given the country’s reputation for cozy coffee bars, not invasive police tactics. Dutch police can tap any phone they like, so long as the crime under investigation carries at least a three-year jail term.
Washington’s biggest European critic?France?also has a serious wiretapping habit, as Marc Perelman points out in Foreign Policy: “In addition to judicially ordered taps there are also ‘administrative wiretaps’ decided by security agencies under the control of the government.” Perelman argues that most French know about these policies but don’t seem to care, despite clear cases of abuse in the past. Most prominent is the Elys?e Scandal?named after the palace where the late President Francois Mitterrand set up an undercover listening room.* Mitterrand’s operatives tapped the calls of his political enemies: lawyers, businessmen, journalists, and even the actress and Chanel model Carole Bouquet. This took place in the mid-1980s but only surfaced recently, and 12 conspirators were brought to trial. What’s interesting?and disturbing?about the Elys?e Scandal is that at the time, French authorities had justified the surveillance as a necessary tool to fight terrorism.
Earlier this month, in one of the more bizarre cases of Euro-tapping, Greek officials acknowledged that 100 cell-phone lines were tapped during the 2004 Athens Olympic Games. Oddly, all those targeted were involved with national security, including Prime Minster Kostas Karamanlis. Vodafone, the mobile phone company, learned of the wiretapping when customers complained they were not receiving their messages and calls. An investigation revealed that someone had installed spy software. It’s not clear who was tapping the phones or why.
European police aren’t listening only to conversations; now they have access to other details of phone use. In December, the European parliament approved new rules requiring telecommunications companies to retain customers’ telephone and Internet records for up to two years. The directive passed in record time, despite objections from phone companies and Internet providers (all that record-keeping is expensive), as well as privacy advocates. This means that European authorities can tell not only what was said in a phone call, but who was on the other end and where they were located. The United States lobbied hard for this new EU policy, even though telecommunications companies in this country are under no such record-keeping obligation.
When it comes to consumer information, Europeans guard their privacy much more fiercely than Americans do. European companies can’t legally share most consumer information, and cases of identity theft are much less common.
So, why are Europeans so nonchalant when it comes to government eavesdropping? One reason is that sometimes it works. When Osman Hussain, a suspect in the botched July 21 London bombing, fled Britain, police traced his journey?across the United Kingdom to France and then Italy, where he was arrested?by tapping his cell phone.
There is a cultural explanation, too. Europeans tend to trust their private information with governments, not corporations. So, while they wouldn’t dream of divulging their credit card number to a telemarketer they will gladly hand it over to a government clerk. The state is seen as more benevolent than those greedy, Americanized corporations.
And Europeans have no equivalent to the American Constitution, which enshrines the right of individuals to be free from government coercion. Privacy International’s Hosein draws on this constitutional tradition when he explains why Europeans don’t bristle at wiretapping that would appall Americans. In Europe, he notes, there are plenty of pressure groups fighting for the rights of consumers, but very few lobbying on behalf of citizens. There is no European equivalent of the ACLU, pushing back against government intrusions. So, next time you’re in Europe, feel free to hand out your credit card number willy-nilly. Just be careful what you say on the phone.
Correction, Feb. 14, 2006: The piece originally misspelled Francois Mitterrand’s last name. (Return to the corrected sentence.)
Eric Weiner is a correspondent for NPR’s Day to Day program.