Echelon: The French fight back

French companies and individuals take their grievances to court, as Americans try to justify covert surveillance activities as a necessary protective measure against European commercial bribery habits
Written by Richard Barry, Contributor

A legal battle that threatens to blow the lid on the covert surveillance network Echelon will reach the courts by autumn according to the lawyer leading the assault on America's National Security Agency (NSA). The plaintiffs, several French corporations and individuals who cannot be identified, allege that the NSA has spied on them illegally.

David Nataf of the Jean Pierre Millet law firm in Paris, says his team has enough evidence against the NSA to pursue damages for lost business and for illegal covert activity. If his bid is successful, the case may also prompt reaction from the European Parliament which could engage the European Court of Justice, forcing America to cease and desist its covert activities unless it receives proper authorisation.

At the centre of the allegations is evidence implicating the NSA's involvement in spying on European nations' commercial dealings. Nataf's team will try to convince the American courts that stolen information was passed onto US companies, giving them an unfair advantage over their French competitors.

A win for the prosecution would be a major embarrassment for America that will undoubtedly throw suspicion on its business relationships with other European countries. It will also focus on America's alleged spying on individuals, including its own citizens, which is illegal under US Federal law.

"We have known for some time that America has been using Echelon to spy on our businesses in France," says Nataf. "There is no doubt that it has been used to win large corporations big business at the expense of France and other European countries. This is not fair. It is not legal."

As well as seeking recourse for his corporate clients, Nataf has several individual claimants seeking damages. For them, says Nataf, financial gain is not the principle motive. "Spying on individuals is in breach of the European Convention on Human Rights. It is illegal. For us, it is important that we raise awareness of these actions by America on European citizens so there can be universal condemnation."

But raising awareness about America's covert activities doesn't appear to be an issue for the US security forces. In March, a former CIA director, James Woolsey, confirmed that the US monitors European communications, to keep an eye on any economic bribery activities. "We have spied on that [bribery] in the past," said Woolsey responding to the "Interception Capabilities 2000" report presented to the parliament's Citizens Rights Committee. "I hope that the United States government continues to spy on bribery."

Woolsey justified his country's illegal activity further by saying Europe had a "national culture" of bribery.

France is, understandably upset by Woolsey's views and is keen to show the rest of the world that even the Americans are not welcome to snoop on its citizens, or its corporations without severe condemnation. "If these allegations against the NSA are true, they have serious implications, not only for businesses, but also for the privacy of individuals living in Europe," says Graham Watson, MEP and chairman of the EP committee on Citizens' Freedoms and Rights, Justice and Home Affairs. "We want these allegations investigated. If they are true, we will then be looking for a statement from the Council of Ministers which represents the national governments."

This is where things start to look bad for the Americans. A victory for Nataf will prompt the Council of Ministers to question whether US activity contravened European law. The European Court of Justice would make the decision and the Parliament would fight to have the activity stopped.

Even Tony Blair could be drawn into the row: it is widely believed the base at Menwith Hill in Yorkshire is used by America to spy on the rest of Europe.

But for America, compensating a few companies and individuals is a small price to pay. "Really there is no punishment," says Paul Lannoye president of the Green Group in the European Parliament/European Free Alliance, and an active campaigner against Echelon. "The best this case can do is raise awareness -- embarrass the people behind Echelon."

Failing that, France is left with two other options according to Lannoye. "The first is to establish technical answers. This is a war, a war that will be fought by technical means. For France and other European states, the challenge is to be advanced enough to repel spying efforts from the US and other countries. The second option is through political means [specifically the Committee set up by the Parliament to look at creating a mandate on spying] which will allow us to set up meetings with states that want to spy and ensure they do it only when they receive proper authorisation."

In the meantime Lannoye applauds French businesses and individuals who employ strong cryptography to protect their data. "Cryptography is big in France because of these rumours and why not? These people are concerned about the effects spying has on society. It is dangerous for the citizens to be spied upon by governments. It is a society where it is impossible to be free."

Go to ZDNet's Echelon Special

The British are keeping a stiff upper lip, the US simply avoid mentioning it and the French believe it has been stealing secrets from France for years. Go to the TalkBack forum to tell us what you know and think about Echelon.

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