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Secret surveillance in Poland after Snowden

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DOI: 10.4324/9781003120827-10
Chapter 7
Secret surveillance in Poland
after Snowden
Between secrecy and transparency
Mateusz Kolaszyński
Introduction
Surveillance powers are typical in the work of law- enforcement agencies and
intelligence services around the world. In democratic states, they make it
possible to ght against such threats as terrorism, cyber- attacks, organized
crime, etc. (Gill and Phythian 2018). To this end, state services use secret
surveillance— covert techniques and practices of information gathering about
people that occur without the monitored subjects’ knowledge or approval.
These surveillance powers, typically carried out by law- enforcement and intel-
ligence services, are more sensitive politically, as well as closely related to core
issues of power and security (Svenonius and Björklund 2018). However, these
state activities may also seriously interfere with fundamental rights, in par-
ticular privacy and data protection. Nowadays, technological advancements
have generated new threats and, at the same time, have provided means of
ghting those threats, making such work increasingly complex. Technological
progress means that intelligence services have tools for almost unlimited sur-
veillance. It is the obligation of the state to provide adequate safeguards for
people and to enact clear laws in this area (FRA 2017a, 2017b).
This problem has often been described as a conict between security and
human rights (Bigo 2012). However, secret surveillance can also be used to
protect human rights, e.g., potential victims of crime or terrorist attacks.
Thus, this chapter recasts the conict in surveillance policy as a dilemma
between secrecy and transparency (Matei and Bruneau 2011). Secrecy ensures
the effectiveness of security services, and thus agencies lobby for solutions
that limit transparency. In turn, explicit provisions regarding surveillance,
control mechanisms, and independent oversight can be considered aspects
of transparency. Such guarantees can also contribute to increased protection
of human rights. The goal of this chapter is to discuss the barriers against
overcoming the culture of secrecy in the area of surveillance (Kovanic and
Coufalova 2019) with particular focus on Poland, where debates about the
Snowden revelations have not succeeded in making surveillance practices
more transparent (Gruszczak 2017).
128 Mateusz Kolaszyński
The obligation to provide security for citizens is one of the constitutional
values in a democracy, and the effectiveness of security provision sometimes
requires secrecy. However, the domination of secrecy over other constitutional
values is a systemic and institutional problem. Since 1990, there has been no
comprehensive move toward transparency. The construction of modern intel-
ligence services has not been completed in Poland. There is a lack of response
to contemporary challenges, including the development of information tech-
nologies and international cooperation with the services of other countries, as
well as regulatory challenges related to Snowdens revelations.
On the contrary, even after Snowden’s revelations security services have
increasingly extended surveillance powers (Kolaszyński 2019). Since 2016,
the role of the Polish Constitutional Tribunal has been limited. Earlier, the
rulings of the tribunal had a substantial impact on limiting surveillance. This
makes Poland one of the countries that still has a broad surveillance man-
date (Svenonius et al. 2014). In general, successive Polish governments have
supported reforms that tend to increase surveillance powers. This practice is
mostly inuenced by the politicization of law enforcement and, rst and fore-
most, intelligence services. Security services can push for benecial solutions
for themselves, such as unlimited access to information. The success of
these policies also derives from the weakness of institutional arrangements,
including limited possibilities of the opposition, low public awareness, and a
lack of real independent oversight. Overall, there is institutional support for
broad surveillance powers and a lack of signicant safeguards against such
policies in Poland.
The article is structured as follows: the rst part will present signicant
legislative changes in the area of surveillance after 2013; the second part
will describe institutional and administrative arrangements that should
ensure there is a balance between secrecy and transparency, and therefore
the successful governance of surveillance; the third part will show the bal-
ancing role of the Constitutional Tribunal prior to 2016 and its limited role
ever since.
Legal framework after 2013
Since Snowdens warnings about the extent and dangers of secret surveil-
lance, Poland has had no radical rethinking with respect to secret surveillance
practices. Since 1983, Polish law has used the term “preliminary investigation”
(czynności operacyjno- rozpoznawcze) to refer to secret surveillance. This sig-
nicant change did not mean that before 1983 security services did not keep
citizens under surveillance. Indeed, they frequently operated in such a way but
did so without any statutory basis. The Act of 1983 thus did not regulate pre-
liminary investigation in a comprehensive way. The practices of the Security
Service (Służba BezpieczeństwaSB) in the Polish People’s Republic (Polska
Rzeczpospolita LudowaPRL) made that draft regulation almost irrelevant,
Surveillance in Poland after Snowden 129
since under the communist system secrecy was the norm in the state’s surveil-
lance policies (Persak and Kamiński 2005).
In 1990, a new intelligence and police law led to changes in regulations
concerning secret surveillance (preliminary investigations). The statutory
regulation was expanded, and there were attempts to improve the rules in
the ensuing years. The process of declassifying secret surveillance during the
political transformation came down to the following key issues: changing the
statutory basis for secret surveillance; new intelligence and police services
structure that would formally separate preliminary investigations from pol-
itics; increasing governmental control and external oversight of secret surveil-
lance. But the reforms also raised doubts regarding the role of transparency in
surveillance and did not strike a balance between security and human rights.
With regard to state surveillance, the culture of secrecy and the lack of
citizen awareness still dominate, despite a few solutions aimed at enhancing
transparency. Very often, extensive surveillance powers are granted without
adequate procedural guarantees for the protection of human rights and
without creating independent oversight mechanisms over security services.
Increasingly, the capabilities of state institutions stem from adopting impre-
cise, laconic regulations (FRA 2017a). This problem of lack of balance has
received attention from several institutions, even if it remains unresolved.
At the national level, these institutions are primarily the Constitutional
Tribunal, the Commissioner for Human Rights (RPO), the Supreme Audit
Ofce (NIK), NGOs, and some experts. At the international level, relevant
institutions include the European Court of Human Rights (ECHR), the
Court of Justice of the European Union (CJEU), the Venice Commission,
and the European Union Agency for Fundamental Rights (FRA).
This part of the chapter will present the most important legal changes
regarding secret surveillance after 2013. Most of them were introduced in
2016 after the election of the conservative Law and Justice party (PiS) in
order to increase the scope of state secret surveillance. Earlier, the ruling
liberal coalition of the Civic Platform (PO) and the Polish People’s Party
(PSL) ignored changes in the area of secret surveillance, even though reforms
became a necessity as a result of the Constitutional Tribunal’s ruling and
alarming signals from other institutions, such as the RPO. Current solutions
in Poland will be presented in the context of international standards set by the
ECHR, the Venice Commission, and the FRA.
A key piece of legislation were the amendments referred to as the
Surveillance Act of 2016,1 which implemented some recommendations
included in the Constitutional Tribunal judgment of July 30, 2014 (No. K
23/ 11), which demanded rigorous reform to surveillance. However, the Act
only partially implements the judgment, and the most essential principles
formulated in the judgment, which reected the process of the revision of
secret surveillance legislation, were not included. This issue will be discussed
in the latter part of the chapter. The Surveillance Act additionally introduced
130 Mateusz Kolaszyński
other legal solutions that the Constitutional Tribunal’s judgment did not
require or refer to at all, in particular with reference to the scope of intelli-
gence services’ access to telecommunications and internet data, which have
been signicantly extended. This led to the creation of a mechanism for the ex
post oversight of access to telecommunications and internet data conducted
by the regional court based on a biannual statistical report prepared by law
enforcement and intelligence services. However, the judicial oversight is illu-
sory due to the limited powers of the regional court, which will be further
discussed in the second part of the chapter.
In 2016, the Sejm (lower house of the Polish Parliament) passed numerous
other laws that extended the reach of surveillance powers. A notable event
was the passage of the amendment to the Code of Criminal Proceedings,
introduced in March 2016,2 enabling the broader use of surveillance in crim-
inal proceedings (Grabowska- Moroz 2016). The amendment introduced a
provision (§168a), which states that evidence cannot be considered inadmis-
sible solely because it was obtained in violation of the rules of criminal pro-
cedure or by committing an offense. The only exception is when the evidence
has been obtained as a result of murder and/ or willfully causing bodily injury
or imprisonment in connection with the performance of an ofcial public
duty. Moreover, the amendment deleted the so- called “ex post consent pro-
cedure” conducted by the court. According to the previous law, if operational
surveillance— recording the contents of telephone conversations and corres-
pondence conducted via telecommunications networks— provided evidence
of a different crime or one committed by a person other than the one under
investigation, the decision of the court was required. The Act deleted this pro-
cedure and provided that only the consent of a prosecutor is required (§168b).
Another regulation that impacts the oversight system of intelligence services
and law enforcement is the new Law on the Prosecutor’s Ofce.3 According to
this new law, the ofce of the Prosecutor General is held by the Minister of
Justice so that this function is fullled by a politician, a member of the gov-
ernment. This dual role is especially important because prosecutors are also
entitled to permit the use of some secret surveillance. Their control covers
access to classied les containing information gathered during surveillance.
Moreover, the new law allows the Prosecutor General to order the competent
authorities to conduct secret surveillance operations if they are related to the
ongoing investigation (Rzepliński 2003).
On June 10, 2016, the Sejm also adopted the Anti- terrorism Law.4 This
regulation extends the powers of the Internal Security Agency (ABW) and, at
the same time, relaxes oversight requirements, particularly toward foreigners.
At least three controversial provisions of this Act are related to secret surveil-
lance and concern the following issues: the condential register maintained
by the ABW, wiretapping (in legal terminology: operational surveillance)
of foreigners, and criminal proceedings based only on information from
secret surveillance. To prevent “terrorist events,” the head of ABW keeps a
Surveillance in Poland after Snowden 131
register of persons who may be associated with terrorism.5 However, how
this condential register is maintained does not meet the standards set by the
ECHR (Leander v. Sweden, No. 9248/ 81). The Anti- terrorism Law regulates
the exception by way of a fundamental principle in the Polish legal system,
according to which any application of operational surveillance by intelli-
gence services and law enforcement requires the consent of an independent
authority (a regional court).6 The third signicant change introduced by the
Anti- terrorism Law “liberalizes” criminal trial procedures.7 A person can be
charged in criminal proceedings based only on information obtained as a
result of secret surveillance. Moreover, information from secret surveillance
may be the basis for the prosecutor’s request for detention on remand. Thus,
pretrial detention and prosecution may occur based on anonymous data, for
example, an ofcer’s note from a meeting with an informant not disclosed in
the case le (Bodnar et al. 2019).
Recently, three new institutions emerged which were granted consider-
able powers in terms of surveillance: the National Revenue Administration
(KAS), the National Security Services (SOP), as well as the Internal Oversight
Inspector (BNW), which is subject to the mandate of the Ministry of Internal
Affairs. The KAS was created from the merging of two services that used
surveillance. Due to the large number of institutions authorized to under-
take surveillance in Poland, this combination is generally favorable. The SOP,
like the Government Protection Bureau (BOR), is responsible for providing
VIP security services for the Polish government (security of incumbent and
former Presidents of Poland, high- ranking state ofcials, etc.). However, the
new service has garnered signicantly more far- reaching powers. Controversy
was aroused when surveillance powers were granted to the SOP, because the
BOR did not have such powers. The surveillance powers of the SOP are exten-
sive and include operational surveillance and the collection of metadata. It
is particularly worth noting that the new law copied the solutions of other
police acts without any new proposals for better safeguards for human rights
(Kolaszyński 2019).
The BNW is a part of the Ministry of Internal Affairs and is supposed
to keep under surveillance other security services upon the request of the
Minister of Internal Affairs. The purpose of this service is to improve and
unify ministerial control of other institutions, such as the police, the Polish
Border Guard, and the SOP. One of the tasks of the new agency is to con-
trol the surveillance activities of the services mentioned above. Seconded
police ofcers, border guards, and SOP ofcers work primarily in the BNW.
Formally, this institution is a part of the internal organization of the Ministry
of Interior (Kolaszyński 2019).
The extensive surveillance powers of the BNW are controversial. Since
1990— when civilian control over security services was established— only
security services (the police, the Polish Border Guard, and intelligence ser-
vices) have had surveillance powers. The Minister of Internal Affairs had
132 Mateusz Kolaszyński
the right to intervene in the work of services only when entitled to do so
by applicable acts. This solution was designed to separate civil and political
management in the ministry from professional and apolitical law enforcement
and intelligence services (Widacki 1999). After 1990, control over surveillance
powers gradually became the domain of prosecutors and courts. The sur-
veillance powers of the new services under the full control of the Ministry
of Internal Affairs work against the model mentioned above. On the one
hand, the minister gets the opportunity to view the surveillance materials of
the supervised services. On the other hand, the minister’s Internal Oversight
Inspector— the BNW— also has extensive surveillance powers. For example,
this institution can use operational surveillance or partake in collecting meta-
data (Kolaszyński 2019).
Surveillance methods form the core of the activity of each service.
Problems arising from the monitoring of this activity, that is, controlling the
controllers, are visible in many countries (FRA 2017a, 2017b). However, the
common standard is oversight exercised by an independent, external body.
The appointment of the BNW does not meet this standard. The Ministry
of Internal Affairs is politically accountable for the activities of the services
controlled by it (the police, the Polish Border Guard, the National Security
Bureau). That is why a reliable explanation of violations may conict with the
minister’s potential accountability (Kolaszyński 2019).
The legislative changes presented above grant the security services exten-
sive opportunities to use secret surveillance. It is also necessary to indicate
areas in which systemic reforms have not been undertaken for many years.
Three such areas, where regulations are residual and loose, are essential for
surveillance. More clarication of the law on these issues and proper devel-
opment of regulations would ensure an adequate balance between transpar-
ency and secrecy (FRA 2017a, 2017b). The rst area is the system of control
and oversight over intelligence and police services. More on this subject will
be discussed in the second part of the chapter. The law also barely regulates
the second area— international cooperation in the Polish security services.
Additionally, there is no legal basis for intelligence actions taken abroad.
Currently, the law does not control any surveillance methods that are used to
collect data outside the country. It also does not require the ofcers to fulll
any particular responsibilities or comply with bans. Both legislative changes
and a lack of initiative in other areas mean that the current legal system may
be incompatible with the Polish constitution and international standards in
many elements (Lefebvre 2016; Kolaszyński 2019).
Since Snowden, international standards have generally been ignored by the
Polish authorities, despite the recommendations of the Polish Ombudsman,
NGOs, and experts. A report prepared under the auspices of the ombudsman
pointed to many deciencies in the Polish legal system (Bodnar et al. 2019).
Polish law does not conform to international standards relating to the use of
wiretaps and operational surveillance (as well as the use of metadata) resulting
Surveillance in Poland after Snowden 133
from the case law of the ECHR. Moreover, Polish law does not correspond to
the standard for the use of metadata by the security services and the protec-
tion of information related to professional privilege (e.g., lawyers, journalists)
set out in the judgment in the case of Big Brother Watch and Others v. the
United Kingdom (European Court of Human Rights 2018, application Nos.
25198/ 0258170/ 13, 62322/ 14, and 24960/ 15). Polish authorities do not imple-
ment standards related to the jurisprudence of the CJEU, especially in the
eld of standards related to telecommunications data based on the so- called
retention directive (Court of Justice of the European Union 2014, Digital
Rights Ireland, Nos. C- 293/ 12 and C- 594/ 12; Court of Justice of the European
Union 2016, Tele2, Nos. C- 203/ 15 and C- 698/ 15) and procedural protection
for persons at risk of expulsion (Court of Justice of the European Union
2013, ZZ v. Secretary of State, No. C- 300/ 11). The problems identied by
international organizations are also not the subject of reection. A number
of recommendations from the Venice Commission have not been introduced
into Polish law. According to the Opinion of 2016 (Venice Commission 2016),
procedural safeguards and material conditions established in the police acts
on implementing secret surveillance are still insufcient because they do not
prevent excessive use of powers and unjustied interference that conict with
the privacy of individuals.
In Poland, there is a visible departure from European standards regarding
secret surveillance (Wetzling and Vieth 2018). The lack of balance between
secrecy and transparency is a systemic problem that has been known for years.
Intelligence services and law enforcement are increasingly able to use secret
surveillance. Additionally, more and more institutions are entitled to under-
take such activity. The problem is also that politicians have an increasing
impact on the use of surveillance. Moreover, rather than the development of
adequate control and oversight mechanisms, there has instead been a deteri-
oration in standards (Bodnar et al. 2019). The second part of this chapter will
show how this process is supported by institutional solutions or, oftentimes,
a lack of them.
Institutional and systemic challenges
According to Richard J. Aldrich and Daniela Richterova, Snowden’s
disclosures have not changed the state’s interference in personal privacy but
have rather exposed the crisis of state secrecy. In their view, “the key issue
is not government looking at us, but our increasing ability to look at gov-
ernment, and especially new ways of calling the secret state to account”
(Aldrich and Richterova 2018, 1003). A similar opinion can be found in the
Guardian article about the situation in Poland that was published shortly
after Snowdens revelations: “The Prism affair questions the very essence
of the contract between societies and their governments: accountability”
(Bodnar and Szymielewicz 2013). It does seem that after 2013, the challenges
134 Mateusz Kolaszyński
of creating an oversight system of state surveillance became the primary issue.
The way these mechanisms function is a practical reection of how the state
confronts the dilemma between transparency and secrecy.
The problem of the lack of balance between secrecy and transparency can
be seen from the perspective of the separation of powers. Each branch has
a different role in secret surveillance. Together, the executive, legislative, and
judicial branches can provide guarantees against the use of secret surveil-
lance. In turn, possible shortcomings of this system have allowed laws to be
passed without a balance between transparency and secrecy (Wegge 2017).
In Poland, there is a serious problem with the politicization of the services.
Until 1990, security services were part of ministries and were fully politicized
(Gruszczak 2009; Caparini 2014). Formal regulation in 1990 was designed
to separate civil and political management in the ministry from professional
and apolitical services. This solution was to guarantee that secret surveillance
would not be used for current policy (Widacki 1999). This was necessary
because of the use of surveillance against the opposition in the communist
system (Persak and Kamiński 2005). However, separating politics from intel-
ligence services turned out to be very difcult in practice.
In 1990, the principle was introduced according to which politicians would
no longer have complete control over the surveillance of citizens, and it was
no longer to be used as a tool in dealing with legitimate political opposition
(Widacki 1999). However, some chosen members of the government were
given control over surveillance powers, in particular, the Prosecutor General
as the Minister of Justice (1990– 2010, and since 2016) and the Minister of
Internal Affairs (1990– 1996, and since 2018). After winning the 2015 election,
the PiS government not only reverted to the previous inuence of politicians
on the secret surveillance apparatus but signicantly expanded this inuence.
The new Law on the Prosecutor’s Ofce discussed above and the establish-
ment of the BNW allow for more far- reaching secret surveillance than before.
Politicians can be inuenced by those who decide on secret surveillance
in Poland, that is, the heads of the special services. These heads have enor-
mous power over their services as they primarily decide on the scope of the
surveillance activity. At the same time, they are not clearly separated from
the current policy because there are no signicant restrictions on who should
be appointed head of a service. A candidate for the position does not have
to be an ofcer of any service, nor demonstrate specic experience, know-
ledge, etc. It is also quite common that many functions are performed by
politicians or other people not directly involved with intelligence services and
more connected with current politics.
In Poland, there is a lack of governmental control over secret surveillance.
According to Hans Born and Gabriel Geisler Mesevage (2012, 6– 7) “over-
sight” should be distinguished from “control” because “the latter term implies
the power to direct an organization’s policies and activities. Thus, control is
typically associated with the executive branch of government and specically
Surveillance in Poland after Snowden 135
with the senior management of intelligence services.” There are practic-
ally no permanent, institutionalized forms of control over services respon-
sible for secret surveillance. Since there are so few institutional limitations,
different governments enjoy considerable independence in exercising control.
As a result, since 1990, law enforcement and intelligence services have been
supervised by a number of bodies of various structural and political statuses
with unsuitable experience and backgrounds. This means no ofcials have
specialized in control over these institutions.8 For example, in the government
of Jerzy Buzek (1997– 2001), the Board for Special Services (KSS) never met
at all (Zybertowicz 2007). The creation of effective control mechanisms is
hampered by the lack of political responsibility for special services. In Poland,
there have been many scandals related to the impact of special services on
political and economic life. However, political responsibility for these events
is not typical for politicians who control the services. Andrzej Zybertowicz
(2007) calls this phenomenon “the institutionalization of non- accountability”
and “self- tasking of the services.”
In this situation, with a lack of permanent control over security services
and a lack of political responsibility, the special services gain a considerable
advantage over politicians. First of all, they are the only ones who have expert
knowledge about intelligence activities, including secret surveillance (Łoś
1995). In Poland, there are still not enough civilian experts and supervisory
institutions. The small number of private experts has historical reasons, since
before the political transformation security research was dominated by the
communist party structures (Matei and Bruneau 2011). At the same time, the
security services have centralized and hierarchical structures that minimize
access from the outside. In the face of any reform attempts, state security
experts present a reliable and determined group of inuencers with a high
degree of knowledge and power. Mixing these two spheres— politics and spe-
cial services— can give rise to support for broad surveillance powers. In this
tandem, intelligence services enjoy expert knowledge and access to secrets.
The government lacks permanent structures, and knowledge about special
services is almost impossible to verify. These circumstances make politics vul-
nerable to manipulation. This situation is further exacerbated by the system
of informal relations between these spheres (Zybertowicz 2007).
Such relationships within the executive branch have an impact on parlia-
mentary oversight. In 1995, the Sejm Committee for Special Services (SKSS)
was appointed, made up of members of the parliament.9 The parliamentary
majority has a decisive inuence on the work of the committee. Recently,
several practices meant to increase the power of the opposition to the work
of this body have been abandoned. With the original establishment of the
committee, the practice of a six- month rotating chairmanship was introduced.
During the fourth term of the Sejm (2001– 2005), the additional practice
developed by which only the opposition deputies became rotating chairmen
136 Mateusz Kolaszyński
(Kolaszyński 2018). In 2015, however, the parliamentary custom of a rotating
chairmanship of the committee was abandoned.
The SKSS formally has a broad mandate regarding oversight of the spe-
cial services. However, the importance of the committee is not demonstrated
by the full range of its work since its powers are limited in practice. The
committee’s members are formally allowed to demand any information about
secret surveillance from the government, the heads of special services, and
ofcers subject to them, but the real power to request this information is
limited. In order to disclose any information related to secret surveillance,
the head of a given institution has to give their consent. The regulations do
specify any particular grounds for either approval or rejection of consent, so
the committee might be denied access to information without detailed justi-
cation (Sarnecki 2010). Polish parliamentary oversight is very often reduced
to trying (and failing) to access the “secrets” of special services. At the same
time, the committee has not contributed to initiating a policy debate on gov-
ernment control of secret services. Since 1995, the SKSS has not prepared any
public report on the situation of special services and their government control
that could initiate a debate on this issue.
The lack of real oversight and parliamentary debate is also evident in the
legislative process. Laws on secret surveillance have passed without serious
discussion about the balance between secrecy and transparency. Opposition
MPs and NGOs are often concerned about the encroachment on human
rights associated with excessive secret surveillance. However, their impact
on the nal form of the law is minimal. The majority of the Sejm supports
unequivocally government projects that give broad powers to security ser-
vices. The ultimate argument for supporters of governmental projects is often
populist rhetoric, i.e., if someone disagrees with the broad powers of a par-
ticular service, then he or she is a supporter of criminals. This approach was
evident during the legislative work on the Central Anti- Corruption Bureau
(CBA) Act in 2006. Criticism of the extensive powers of this institution was
often rejected with arguments such as “honest people have nothing to fear” or
“only a supporter of corruption may have doubts about the broad powers of
the CBA.” Eventually, despite its unprecedented broad powers in Poland, the
CBA Act was passed with the support of a signicant part of the opposition.
Populist rhetoric is effective due to public opinion. Knowledge about the
activities of intelligence services is not common. In general, citizens do not
know what functions the security services other than the police perform,
nor is there widespread knowledge of the umbrella mechanisms of control
and oversight. This problem is characteristic of many Central and Eastern
European countries (Matei and Bruneau 2011). One of the main reasons for
this is the government and intelligence services’ information policy, which
leaves a lot to be desired. There is a culture of secrecy in this area because even
the necessary information on the activities of special services is not provided.
The need for condentiality often masks incompetence. This also applies to
Surveillance in Poland after Snowden 137
proactive information policy, which is, to some extent, carried out by only two
services, the ABW and the CBA (Matei and Bruneau 2011).
The secret surveillance issue is not popular with the public. This factor
reduces the pressure on the government to seek a balance between broad
powers and human rights. According to the Public Opinion Research Center
(CBOS), the majority of voters support broad surveillance powers. In the
opinion of Poles, there is no need to change surveillance capabilities, and
security services should have wide surveillance powers. This is particularly
apparent with regard to internet surveillance. According to CBOS, when
faced with a choice between, on the one hand, increased possibilities for
internet surveillance for the police and other services in order to combat
crime and, on the other hand, decreased control of online communication to
protect users’ privacy, Poles usually choose the rst option (46% vs. 30%).10
Moreover, half of the respondents think that the current powers of police
services and intelligence agencies to gather information about internet users
are acceptable. It is important to note that this CBOS research was carried
out in April 2016 after the reform that introduced the so- called Surveillance
Act. In general, surveillance is not an issue that is particularly important for
Poles. Shortly after the introduction of the Surveillance Act, 54% of Poles
didn’t know anything about this law (27% of Poles had heard of it but did
not know what the changes were; only 19% of Poles had heard of it and had
some idea of the changes introduced) (CBOS 2016, 5). A large group of Poles
are not interested in the issue of surveillance whatsoever. It seems that lack
of awareness is a crucial factor in assessing the attitude of Poles toward this
problem (Svenonius and Björklund 2018).
This indifference can be gradually reduced by the activities of NGOs and
media pluralism. More and more NGOs are comprehensively monitoring the
issue of surveillance. The largest of them include the Panoptykon Foundation,
the Helsinki Foundation for Human Rights, and Amnesty International.
They use the Act on access to public information.11 As a result, the media has
often proved a more effective oversight tool than the overall formal control
and oversight mechanisms (Matei and Bruneau 2011). Most of the evidence
of irregularities associated with security services originated in media reports
(Hillebrand 2012).
The balance between secrecy and transparency is also distorted due to
the weakness of independent oversight. In 2001– 2002 some responsibilities
related to secret surveillance— operational surveillance— were transferred
from the Prosecutor General to the courts. The Prosecutor General was no
longer supposed to authorize this power but merely provided an opinion on
the motions submitted to the court by the various services. This method of-
cially guaranteed external, independent oversight over this area of secret sur-
veillance, which impinges upon human rights to the greatest extent. However,
there is a lack of actual judiciary oversight in practice. Judiciary oversight
is exercised by the criminal divisions of regional courts, mostly dealing with
138 Mateusz Kolaszyński
criminal cases. There are no other specially designed departments or other
structures that would be responsible for giving consent to operational sur-
veillance. For this reason, such duties are treated as peripheral and secondary
tasks. Moreover, the courts are not able to review all materials regarding a par-
ticular case. They can only examine what the services show them. Ultimately,
this oversight is illusory. Publicly available statistics conrm this thesis— the
courts accept about 99% of the requests from the heads of secret services for
the application of operational surveillance (Rojszczak 2021).
In Poland, no independent body has yet been established to examine citi-
zens’ complaints about the surveillance activities of security services. There
is still no effective external oversight of access to telecommunications, posts,
and internet data, as that guaranteed by law since 2016 is mostly illusory.
This monitoring is exercised only ex post and randomly; the lack of prior and
individual oversight is not the only deciency with regard to current solutions
(Bodnar et al. 2019). Both types of judicial oversight— that established
in 2001 over operational surveillance and the one established in 2016 over
telecommunications, internet, and postal data— share the same limitations.
In both cases, permanent organizational structures that would deal with this
type of activity were not guaranteed in the acts. Moreover, no additional
nancial and human resources were provided for this purpose. Ensuring
adequate organizational structures to enable permanent oversight is justied
by the scale of the security services’ activities: in 2017, special and police ser-
vices acquired over 1.2 million pieces of data. As for operational surveillance,
the police alone led nearly 10,000 wiretapping applications in 2017 (Bodnar
et al. 2019; Kolaszyński 2019).
In Poland, there is no specialized, independent institution that would deal
only with the oversight of secret surveillance. In many countries, such external
bodies have been created. Currently, one or more such institutions dedicated
to security services operate in 16 EU countries. Only some aspects of secret
surveillance work also used to be monitored by an independent constitutional
body— the NIK and the RPO. Their role is essential, but neither is authorized
to carry out any regular oversight of the services (Kolaszyński 2018).
The role of the Constitutional Tribunal
According to some researchers, breaking the secrecy culture exceeds the cap-
abilities of any institution in Poland (Zybertowicz 2007). However, it is worth
noting the role of the Constitutional Tribunal in regulating surveillance. This
institution has played one of the most signicant functions in developing the
statutory basis for secret surveillance over the last 30 years. The tribunal has
often contributed to the introduction of changes in the regulations and, con-
sequently, the move toward more of a focus on the protection of human rights
(judgments No. W 12/ 94, No. K 45/ 02, and No. W 54/ 07). The tribunal’s case
law has signicantly reduced surveillance powers and was of fundamental
Surveillance in Poland after Snowden 139
importance for statutory changes in the matter of surveillance. However, in
2016 the function of the tribunal in this eld was actually suspended. The
paralysis of the constitutional court is the most severe change in surveillance
policy since Snowden and can explain the expansion of surveillance powers
in recent years.
Before 2016, the tribunal decided to limit surveillance powers on several
occasions. Two representative cases will be presented below. In both cases,
these were sentences issued shortly after the establishment of new special
services: the Internal Security Agency (ABW) and the Foreign Intelligence
Agency (AW) (2002) and the Central Anti- Corruption Bureau (CBA) (2006).
The judgment of the Constitutional Tribunal of April 20, 2004 (No. K 45/
02) considered the appointment of political heads to security agencies as
nonconstitutional. According to the tribunal, assigning the heads the role of
secretaries of state was a sign of circumventing the constitutional ban on
joining the parliamentary mandate with employment in a government agency,
and the post of head of special services had not been prepared for politicians.
This also applies to the use by politicians of intelligence services and their sur-
veillance powers. This ruling was welcomed by constitutionalists (Radziewicz
2004), and since then, the heads of the ABW and AW have not been secre-
taries of state with political functions.
As with the establishment of the ABW and AW, the Constitutional Tribunal
examined the constitutionality of the Act on the CBA. In a judgment on June
23, 2009 (No. K 54/ 07), the Constitutional Tribunal ruled that the denition
of corruption in the CBA Act was unconstitutional because the denition
was unclear and ambiguous, resulting in CBA’s broad scope of competence.
This legal denition played a fundamental role in determining the scope of
the CBA’s tasks. In this context, the court also ruled on surveillance powers.
It considered the use of sensitive data and information obtained as a result
of performing surveillance activities without instruments for controlling
how these data are stored and veried unconstitutional. This problem also
concerned the method of deleting unnecessary data due to the statutory tasks
of the CBA. Based on this judgment, the CBA Act was thoroughly amended.
This amendment introduced to the CBA somewhat independent, internal
control of the rights related to the collection and processing of personal data.
The Constitutional Tribunal judgment of July 30, 2014 (No. K 23/ 11), which
was issued after the Snowden revelations, could have had a similar impact. In
this case, the tribunal ruled at the request of the Polish Ombudsman com-
prehensively concerning surveillance powers. In this judgment, the tribunal
specied essential principles that must be jointly met by provisions that regu-
late acquiring information on individuals in secrecy by public authorities in
a democratic state ruled by law. The judgment required the introduction of
changes in the law, which concerned the introduction of a mechanism of inde-
pendent oversight over access to telecommunications data by police and spe-
cial services ofcers; clarication in the law of the types of crimes detrimental
140 Mateusz Kolaszyński
to the economic foundations of the state, in respect of which the ABW may
conduct surveillance control; introduction of a mechanism guaranteeing the
protection of attorney– client privilege; and introduction of a procedure for
the destruction of redundant telecommunications data. Furthermore, the
tribunal’s judgment contained many recommendations regarding limitations
on the use of operational surveillance.
As noted above, the 2016 Surveillance Act implemented some
recommendations included in this judgment. The difference from previous
rulings of the Constitutional Tribunal lies in the fact that this judgment was
only partially implemented— the Polish legislature did not include the essen-
tial principles of secret surveillance. Moreover, the Surveillance Act introduces
other legal specications that the Constitutional Tribunal’s judgment did not
require or refer to at all (Bodnar et al. 2019). In February 2016, the Polish
Ombudsman referred the most important provisions of the Surveillance Act
to the Constitutional Tribunal. In his words, the reform not only fails to exe-
cute the judgment of the Constitutional Tribunal of 2014, but also “seriously
violates the constitutional rights and freedoms and the standards set out in
international law.”12 According to the ombudsman, in the Polish legal system
there is still a shortage of legal safeguards that would ensure that surveillance
measures do not violate fundamental rights. However, in March 2018, the
ombudsman withdrew his application from the Constitutional Tribunal. He
stated there was no chance of an independent and substantive judgment of the
Constitutional Tribunal. This decision is related to the dispute surrounding
the Constitutional Tribunal in Poland. The withdrawal of the application is
signicant if we take into account the role of the Constitutional Tribunal
in limiting the powers of surveillance. Until now, it has been one of the key
institutions that make up the oversight system of police and intelligence ser-
vices. In the same year, the ombudsman withdrew the motions for all legal
changes discussed in part one of the work: the Code of Criminal Procedure
(April 2018– Article 168a and May 2018– Article 168b); the Anti- terrorism
Act (April 2018); and the Act on the Prosecutor’s Ofce (October 2018). The
reason for all these decisions was changes in the composition of the previ-
ously appointed Constitutional Tribunal and the fact that unauthorized per-
sons were appointed on political grounds.
Conclusion
A culture of secrecy still dominates Polish surveillance policy. This is
connected with the still- dominant logic and interests of the security services,
as secret surveillance is primarily used to combat crime and other threats to
national security in an effective way. Such an approach is supported by the
government, which has limited the inuence of alternative expert knowledge.
Ultimately, this leads to the adoption of laws that provide extensive surveil-
lance powers without sufcient institutional or administrative mechanisms to
govern surveillance practices and prevent abuse.
Surveillance in Poland after Snowden 141
The pressure toward a more transparent approach to surveillance is still
weak due to many factors. The political opposition still has a limited inuence
on the shape of surveillance law. Public opinion has little interest in this issue,
which weakens potential pressure on the government. Also, independent over-
sight, which only exists formally, does not play any substantial role; it does
not allow reliable conclusions based on veriable facts, and it falls short of
professional control mechanisms with appropriate substantive facilities and
proper procedures. In addition to all this, the activities of the Constitutional
Tribunal— which has in the past played an important role in limiting sur-
veillance and protecting rights— have recently been paralyzed, resulting in a
continued imbalance between transparency and secrecy in surveillance.
Notes
1 The Act of 15 January 2016 Amending the Police Act and certain other acts (the
so- called Surveillance Act).
2 Act of 11 March 2016 amending Code of Criminal Procedure and other acts,
Journal of Laws, item 437.
3 Act of 28 January 2016 Law on Prosecutor Ofce, Journal of Laws of 2017, item
1767 as amended.
4 Act of 10 June 2016 on antiterrorist action, Journal of Laws of 2018, item 452 as
amended.
5 Act of 6 June 2016 on antiterrorist action, Journal of Laws of 2018, item 452 as
amended.
6 Article 9 of Act of 10 June 2016 on antiterrorist action, Journal of Laws of 2018,
item 452 as amended.
7 Article 26 of Act of 10 June 2016 on antiterrorist action, Journal of Laws of 2018,
item 452 as amended.
8 In 2014, the NIK ran an oversight of control regarding special services (ABW,
AW, CBA, and others). Due to classied data protection, the results were never
disclosed. They only issued one public statement, which claims that rules in force
limit the Prime Minister’s power to control special services effectively.
9 Article 95, second paragraph of the Constitution of the Republic of Poland of
April 2, 1997 (Journal of Laws, no. 78, item 483 as amended) states that the Sejm
is responsible for government oversight.
10 Fieldwork for national sample: April 2016, N = 1104. The random address sample
is representative of the adult population of Poland. For more information see
CBOS 2016.
11 The Act of September 6, 2001 on Access to Public Information, Journal of Laws
of 2019, item 1429.
12 The Commissioner for Human Rights application, No K 9/ 16, p. 6.
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... Furthermore, using these digital tools do not seem to decrease complexity for the authorities [22]. Opponents argue that surveillance is necessary and benefits from secrecy [34], while basic cybersecurity engineering practices speak directly against this [54,3]. With the advent of a fully digital society [30], surveillance is conducted on almost all hardware and software, and this increased during the COVID-19 crisis via digital health surveillance [57,50,40]. ...
... 2. The surveillance must pursue a legitimate aim. This can be passed depending on the lack of constitutional protection of the system, or through popular movements, but they must be clear 34 . ...
... Article 11 and Article 10 are not in competition, rather the opposite, and Freedom of Assembly is clearly as important as Freedom of Expression 40 . The freedom to associate with any political party 34 is crucial 41 as is any other form of group 42 . To be included in the protection, the 'association' must have a private character 43 , but the state cannot speculate in nationalising it on purpose to remove the Article 11 protection 44 , or in reality prevent any ineffective exercise of the right 45 . ...
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