Wrzosek and Brejza are the tip of the iceberg. “Every year in Poland over 6,000 people are interrogated”

Daniel Maikowski: Do we have our Polish Watergate scandal?

Wojciech Klicki, Panotpykon: Eavesdropping on the head of the opposition party’s election staff attacks our fundamental rights and values, as well as the equality of the elections. In this context, the comparison of the recent events with the Watergate scandal is absolutely justified. However, I am afraid that the effects of the two scandals will be different, and more specifically, in the case of Pegasus, there will simply be no consequences. At least in the coming months.

In the light of the findings of researchers from the Citizen Lab organization, can we say today with full conviction that the Polish services eavesdropped on opposition politicians via the Pegasus system? The rulers try to downplay this issue or even ridicule it. There are even jokes about the Pegasus console.

What we can take for granted is the fact that the phones of three people: prosecutor Ewa Wrzosek, attorney Roman Giertych and senator Krzysztof Brejza, had the Pegasus system. This cannot be questioned, if only because their smartphones still have digital traces of Pegasus infection. Citizen Lab researchers do not conclude that this wiretap was established by the CBA, ABW or the police. This cannot be confirmed.

However, it’s hard for me to imagine a scenario other than the use of Pegasus by the Polish authorities. For two reasons. Firstly, because we already know that Pegasus is in the hands of the Polish services. Secondly, it seems extremely unlikely that the services of other countries could be particularly interested in surveillance of these three specific people.

What do we really know about Pegasus today?

We know that we are dealing with a total surveillance tool that was created by the Israeli company NSO Group. According to experts’ findings, this tool is used by services in at least 45 countries. John Scott-Railton of Citizen Lab, in one of the last interviews, stated that Pegasus is “the gasoline that waters the authoritarian tendencies of states.” It is difficult to disagree with this statement.

Scott-Railton also added that the Pegasus wiretap scandal that broke out in Poland is only “the tip of the iceberg”.

I have this feeling that we are at a point where the entire public has plunged their heads into murky water. We see the services in it, their operational activities and surveillance tools such as Pegasus. We’re trying to get something out of it, while the biggest problem is that the water is cloudy. To put it bluntly: we do not have tools that would allow us – as citizens – transparent control over the activities of the services.

The fact that many countries in Europe use Pegasus is an open secret today. The question of what activities is it used for? Does the case of Poland stand out from other countries? Do “others” also eavesdrop on their opposition?

We know, for example, that Pegasus was used in Hungary to eavesdrop on journalists who were following the scandals related to the party of Prime Minister Viktor Orban. There are many more such examples. The problem is that they mainly concern authoritarian states, which should not be an example for us to follow.

The creators of Pegasus, the Israeli company NSO Group, swear that it was created to fight terrorism and organized crime …

It is always the case that when some tools are created or services are given specific powers, it is justified by goals that are difficult to argue with. It can be a fight against terrorism or even pedophilia. Who in their right mind will side with those who abuse children? The problem is that when such tools as Pegasus are already in the hands of the services, slowly, step by step, they are also used for other purposes that do not have to be related to the fight against crime.

This was the case with the attacks of September 11, 2001 and the war on terror initiated by the United States.

This is true, but we don’t have to go that far. The fact that Polish telecommunications operators store information about our location is a result of the adoption of EU regulations that were created to fight terrorism. The problem is that the Polish services use this data in cases concerning offenses. And the perpetrator of the offense is hardly a terrorist.

Polish services and politicians in power consistently avoid the subject of Pegasus. They neither confirm nor deny that such software was purchased. Stanisław Żaryn, spokesman of the minister for the coordinator of secret services, repeats a mantra that “in Poland, operational control may be carried out after obtaining the consent of the Prosecutor General’s Office and after issuing a relevant decision by the court”.

Even if we assume that everything is done in accordance with the law, it does not mean that such actions are appropriate. After all, politicians can pass bad laws and then obey them. And in the case of control over the services, or rather the lack of it, it is exactly like that.

Judicial control is insufficient?

We must remember that when the court approves the application of operational control, it knows only as much as the services themselves tell it. And these can hide a number of information from him, such as who will be subject to surveillance, as well as what specific tools will be used. In the application that goes to the court, there is no information that the CBA intends to use Pegasus or Predator. The court may also be unaware that there are circumstances that would warrant not using wiretapping in a given situation. The services – as a party to the case – provide him with only the information that is beneficial to them and incriminating for the person who is to be subjected to surveillance. What’s worse, the court only meets a given case once. And this is where his participation ends. Therefore, there is no one who could come to the services to verify the actions taken by them after the fact.

It seems that the Internal Security Agency does not even need court approval to start operating?

Yes, and it is one of the most harmful changes in Polish law in recent years. The head of the Internal Security Agency may initiate surveillance of a given person without judicial control. It is enough that this person is not a Pole and there is a suspicion that he or she is involved in terrorist activities.

Opposition politicians have already found a recipe for Pegasus. It is supposed to be another commission of inquiry.

I understand the political arguments and agree that the matter of surveillance by prosecutor Wrzosek, attorney Giertych and senator Brejza should be clarified as soon as possible – for example by a commission appointed for this purpose. This does not, however, solve the problem, which is much broader. We are focusing on these three media names, and meanwhile we seem to forget about the fact that every year in Poland the services undergo surveillance of around 6.5 thousand people. people.

Do we need system solutions?

And such solutions are already on the table. As Panoptykon, we point to them, among others in the report “Osiodłam Pegaza”, the development of which involved, among others, the former Ombudsman Adam Bodnar or Adam Rapacki, former deputy chief of the police and undersecretary of state at the Ministry of Interior and Administration in the government of Donald Tusk. that not only human rights defenders were involved in the preparation of these solutions, but also politicians or people from the services, i.e. “the other side of the barricade”.

One of the solutions we propose is to create an institution that could come to the services at any time and demand that they “put all their cards on the table”. To simplify it, it would be a “NIK for services”. The second idea, which in my opinion is equally important, is the introduction of a mechanism for informing people who were subject to surveillance.

Do similar solutions already exist in other countries?

Yes, and quite close. In Germany, 12 months after the closure of operational activities, the target person is informed about it. Meanwhile, in Poland, we have a situation in which only those who have been accused learn about the surveillance being carried out. However, most people intercepted about surveillance will never know.

Majority?

Reports on the number of operational audits that the government submits to parliament show that only 16 percent of them are indicative of any charges. This means that every year the services wiretap thousands of Poles who have not committed any crime, which, in the event of defective judicial control, can lead to various types of pathologies. That is why we need an institution that could stand on the side of the intercepted and look at the hands of the services.

Is there any chance at all to implement such solutions in the current political climate?

A few days ago, Senator Krzysztof Kwiatkowski announced that a draft law would be created within the Senate’s legislative committee, which would regulate the issues of control over the activities of the services. If such a project is created, it will be the first step in the right direction. Of course, it is difficult to imagine that with the current balance of power in the Sejm, such a project would be passed, but it will always be possible to return to it in more favorable circumstances.

The topic of Pegasus and eavesdropping on citizens comes back to us like a boomerang every few years, and then it suddenly fades away. Will the matter be swept under the rug again this time?

It only depends on ourselves. I am an optimist. I have the impression that the social awareness of the dangers of uncontrolled surveillance is growing. The latest IPSOS survey for the OKO.press portal shows that 75 percent. voters consider wiretapping of the opposition unacceptable. More and more people are also aware of the fact that almost all of us can become an accidental victim of surveillance. It is enough for us to find ourselves in the wrong place and time or to maintain any relationship with a person who is of interest to the services.

Minister Olga Semeniuk has recently stated that if she had been tapped, she would not have had any problem with it. After all, there is nothing to hide.

Most of us have curtains in our homes not because we want to hide the crimes we commit, but because we care about our privacy. Privacy, which is a fundamental human right, not a whim.

Wojciech Klicki, Polish lawyer associated with the Panoptykon Foundation. Co-author