Is Armenia’s proposed wiretapping bill unconstitutional?

If passed, an amendment to Armenia’s current law on intelligence-gathering operations would give police the authority to wiretap telephone conversations of private citizens independently from the National Security Service (NSS). Such a legislative amendment would do little to secure Armenians’ constitutionally mandated privacy rights from the threat of continued unlawful surveillance from authorities. 

The amendment’s authors, governing party-affiliated MPs Armen Khachatryan and Sipan Pashinyan (the Prime Minister’s nephew), have presented this legislative package as a necessary tool for police reform, which would provide the civilian police service with the necessary independence to act as a government watchdog. They argue that “the police need this tool as a mechanism of checks and balances to monitor and prevent overstepping [of constitutional boundaries] by other government bodies.” They also contend that had such legislation been in place earlier, it could have prevented the March 1, 2008 massacre which saw the deaths of eight protesters and two police officers in post-election unrest. According to this logic,  the police would have been in a position to uncover a conspiracy by the NSS to cover up the planned violent intervention earlier, and thus put a halt to the ensuing events. The government so far has signaled its opposition to the amendment, but it has already been approved by the Standing Committee on Defense and Security.

Pro-Government MP Mikael Zolyan responded to inaccurate interpretations of the amendment on social media as doing away with the need warrants on his Facebook page. “Before we get accused of establishing a totalitarian dictatorship” he explained, “let me clarify that under the current law, the police must get a warrant before seeking NSS approval to investigate a suspect. This is often ineffective since the NSS is the only agency which possesses the technical capabilities to conduct phone surveillance.” The amendment will authorize the police to go to the courts directly and conduct their own investigation without NSS supervision . They will still require a warrant. This is both more effective in fighting crime and curtails some of the unchecked power of the NSS. “I may be wrong but this seems like a pretty mundane amendment, not quite George  Orwell’s 1984” said the parliamentarian.

The amendments supporters argue that NSS’ privileged control over all intelligence gathering operations place the agency beyond the reach of government purview, which must now be reigned in. Article 33 of the Armenian Constitution unequivocally states that everyone shall have the right to freedom and secrecy of correspondence, telephone conversations and other means of communication, which may “be restricted only upon a court decision.”

Perhaps most concerning is that instead of addressing the current issue of abuse of power by government agencies  this amendment may only be rubber-stamping a practice which the police have likely already been employing for years anyway. A 2017 report on internet freedom in Armenia suggests that unlawful state snooping is common police procedure. “The ease and assurance with which the focus group participants were speaking about the continuous surveillance and wiretapping they or their colleagues have been subject to, show how widespread the cases are and speak more about the unrestricted possibilities for the state agencies (namely the NSS) to arrange it even without a prior notice to the mobile operators,” reads the report. The only difference would be that unlawfully acquired phone records will now be admissible evidence in court. The government insists that police wiretapping would still require court-issued warrants in most cases.

The complete lack of oversight over the authorities’ opaque relationship with telecom companies as well as internet service providers (ISPs) should be equally alarming to proponents of civil liberties, as access to private consumer data seems to regularly leak not only into the hands of police without subpoenas, but also to marketing firms and random individuals. Plans to require ISPs to collect and store bulk consumer data are even less encouraging.

Removing such an important constitutional check on the police’s ability to intrude in the private lives of citizens may set a dangerous precedent which could see authorities misusing and abusing those excessive powers. Authorities in Armenia have already built a reputation for using the tools of responsible policing in tyrannical ways. The police have been known to publish footage from Chinese-manufactured body cams (ironically a tool lauded in the West for bringing transparency to policing) of suspects in what could constitute violations of individuals’ constitutional rights to privacy.

Unfortunately, Armenia isn’t the only country drifting towards increasing state surveillance, as many more established liberal democracies are already further down that same dangerous path. Meanwhile, dictatorial regimes like Communist China have already perfected surveillance technology into a dystopian art form. Empowering a police force which is still dealing with a history of mismanagement and corruption with such judicial independence before meaningful reforms are completed may not be the wisest choice.  

Armenia’s current leaders fronted a popular movement to depose a president who fell to the temptation of creeping authoritarianism. While the Velvet Revolution may have brought about a change in government, it has yet to be followed by a similar change in the police force. It is now their responsibility to enforce the individual and privacy rights that the Constitution guarantees to all Armenians. 

Editor’s note 12/11/2019: This piece has been edited to reflect a clarification from the Government that the new ruling won’t remove the requirement for warrants, but would allow the police to conduct wiretapping operations without NSS oversight.

Raffi Elliott

Raffi Elliott

Columnist & Armenia Correspondent
Raffi Elliott is a Canadian-Armenian political risk analyst and journalist based in Yerevan, Armenia. A former correspondent and columnist for the Armenian Weekly, his focus is socioeconomic, political, business and diplomatic issues in Armenia.

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