Matthias Monroy

The EU Parliament is probing one of Europe’s biggest espionage scandals, but has little power to do so. Europol should investigate the misuse of „state trojan „Pegasus“ in the EU, MEPs demand. However, this would only be possible with the permission of governments, which would be violating fundamental rights.

Governmental surveillance software such as „Pegasus“ is used to monitor mobile phones remotely. The programmes, known in Germany as „state trojans“, can be installed on devices of targeted persons via manipulated links. This turns the mobile phone into a bug: attackers can switch on the microphone and camera, read out location data and listen in on all communications.

The Canadian civil rights organisation Citizen Lab was able to prove in 2016 that some EU states were using „Pegasus“ to spy on political opponents, their lawyers and even critical journalists. This violates the fundamental rights of many of those affected, but also the confidential lawyer-client relationship or the protection of sources, which is important for media professionals.

The extensive snooping with „Pegasus“ became known in Poland, Hungary, Cyprus and Spain, for example, and in Greece the government uses the Trojan horse „Predator“ for this purpose. Following the increasing number of reports, the EU Parliament has set up the „PEGA“ Committee of Inquiry, which is to present a report on state espionage within the EU in the spring. The rapporteur in charge, Sophie in ‚t Veld, published the first results in November and speaks of „Europe’s Watergate“.

The manufacturer of „Pegasus“ is the Israeli Trojan company NSO, which is why MEPs invited its chief legal advisor to the PEGA Committee. He admitted that the company had supplied customers in 14 EU states. Thus, „about 12,000 to 13,000 targets“ were attacked annually.

Compared to parliamentary enquiry committees of national parliaments, the PEGA in Brussels is toothless. Witnesses are not punished for false testimony and cannot be forced to participate. The German Federal Criminal Police Office, for example, has cancelled an invitation to the hearing in Brussels for „scheduling reasons“.

It is also questionable how the EU itself could investigate the use of „Pegasus“ in violation of fundamental rights. A cause for concern does exist: An investigation is said to have found „indicators of compromise“ on the phones of Justice Commissioner Didier Reynders and other officials.

The PEGA rapporteur in ‚t Veld calls for Europol to take action in EU member states that appear to be violating fundamental rights with their state Trojans. She said the EU police agency, based in The Hague, was entitled to do so after MEPs gave the green light to a recast of the Europol regulation a year ago.

In fact, under Article 6(1a) of its new regulation, Europol can propose and then coordinate national criminal investigations. Previously, Europol had to rely on a government officially requesting its assistance.

Europol „deliberately refrains from taking action and allows crimes to go uninvestigated“, in ‚t Veld tells „nd“. In the PEGA interim report of November, the MEP described the possible misconduct for which Europol could investigate. According to the report, the misuse of espionage programmes falls under cybercrime, which could also entail corruption and extortion.

However, the member state in question would have to agree to investigations on its territory, in ‚t Veld also concedes. The application of coercive measures is the „exclusive responsibility of the competent national authorities“, the chairman of the PEGA committee, Jeroen Lenaers, also affirms upon request.

However, it can be considered impossible that governments that spy on political opponents with state Trojans would voluntarily allow Europol to investigate them. Especially since Poland and Hungary are states that like to defend themselves against too much power from Brussels.

At the end of September, Europol wrote to five unnamed EU states asking whether the agency could help with investigations into „Pegasus“ or „Predator“. Four of them replied, Europol chief Catherine De Boelle wrote in December to the PEGA Committee. The governments had opened investigations, but in one case these had already been closed. However, none of the states had requested assistance from Europol.

Published in German in „nd“.

Image: Europol’s Deputy Director and Head of Operations, Jean-Philippe Lecouffe, in the PEGA Committee (EU Parliament).