Debate on Pegasus in the Sejm: Poland lacks real supervision over special services, which favors abuses

On Friday, the Parliamentary Team for the Repair of the Republic of Poland, appointed by the Civic Coalition, dealt with the subject of surveillance cases with the use of the Pegasus system described in the media. The team meeting was attended by prosecutor Ewa Wrzosek, who - according to the findings of experts from the Canadian group Citizen Lab - was one of the people under surveillance using this software, judge Piotr Gąciarek, as well as the former head of the CBŚ and CBA Paweł Wojtunik.

Wojtunik emphasized that operational control (e.g. wiretapping) is a measure of last resort and reserved for use in cases of serious crimes. "This is a +atomic bomb+ in operational work. It cannot be used in cases of theft of chickens or bicycles. The laws specify very precisely in the cases of which crimes it can be used - as a rule, these are the most serious crimes against security or public order, related to criminal activities corruption crimes. There is no freedom here," said the former head of the Central Bureau of Investigation and the Central Anti-Corruption Bureau.

According to him, the system of supervision over the services in Poland is "corrupted by political dependencies". He argued that it was different at the time when he headed the Central Anti-Corruption Bureau. "It was not based on trust and cronyism, pursuing a common political goal, but on reliable, multi-stage supervision and ensuring the legality of actions, because we are talking about a tool that interferes greatly with civil rights and freedoms," Wojtunik noted. He argued that he often asked his subordinates to correct requests for operational control.

He also assessed that Pegasus constituted a "temptation" to use it illegally. "If, for example, we are talking about the control of mobile phones, such data is provided by the operator, he records such access, everything is accounted for, such a conclusion can be traced from beginning to end - which service, what conversations and when they listened. Pegasus, on the other hand, is a device which is a camera, a microphone that the service has and no one knows if this system records its use" - said the former head of the Central Bureau of Investigation and the Central Anti-Corruption Bureau.

Judge Gąciarek confirmed that also the court that receives an application for consent to use operational control for consideration does not know what system the services intend to use. In this application - as he said - there is only information about what is to be recorded, e.g. telephone calls, text messages or e-mails. He also assessed that the Pegasus system and the possibilities it offers go beyond the legal framework in Poland.

He also expressed a number of reservations regarding the supervision of special services. "We do not have and have never really had an independent supervisory authority over the operational activities of the services. There is no one in Poland who could enter these services and demand everything, including secret documents. Everything is based on trust and the assumption that the CBA and ABW are run by people who are fundamentally honest," said Gąciarek.

Such control - as he added - is not exercised by the court. "The regulations on the CBA, ABW or the police say that materials justifying the operational control are presented to the court along with the application. The court will never know whether it has been presented with 100%, 90% or maybe 20% and whether it is compiled manipulated," he said.

According to him, it may also happen that the court will not be notified of the operational control at all. He noted that according to the law, the service may (with the consent of the prosecutor's office) tap the phone for five days, and only then notify the court. "Let's imagine a situation where the prosecutor gives consent for these five days, but you do not apply to the court. This is how we preventively listened to what is going on with someone who interests us, but we do not apply to the court because we have not obtained anything interesting , then we will not bother the court. And no one will control it" - pointed out Gąciarek.

Proc. Wrzosek, referring to the issue of Pegasus surveillance, emphasized that she did not see any legal or logical justification for placing her under this type of control. "No proceedings are pending against me, I have not committed any crime or other prohibited act, so by rationalizing this situation, i.e. the very fact of using this tool against me, I can only associate it with my professional activity, as a prosecutor, on the other on the other hand - with the activity in the association of independent prosecutors Lex Super Omnia. Of course, neither activity nor the other can in any way constitute grounds for applying this type of measure against an active prosecutor, "said Wrzosek.

She stated that the Pegasus software was purchased by the CBA "in great secrecy" with funds from which it had no right to purchase it (from the Justice Fund - PAP). "Is it therefore an abuse to assume that it was done in such a way as to use it in a non-procedural way, outside the regulations and beyond any control by anyone? In my opinion, this assumption is unfortunately very likely" - said the prosecutor.

The meeting of the team was also attended by Senator KO Marcin Bosacki, head of the Senate extraordinary committee appointed on Wednesday to clarify cases of surveillance using the Pegasus system. He confirmed that the next meeting of the committee will take place on Monday and will be attended by experts from Citizen Lab.

Prosecutor Ewa Wrzosek and judge Piotr Gąciarek are among the critics of the changes in the judiciary carried out by the PiS government. Judge Gąciarek was suspended in November last year by the Disciplinary Chamber of the Supreme Court for refusing to adjudicate together with a judge appointed by the current National Council of the Judiciary. proc. Two years ago, Wrzosek launched an investigation into the presidential election. She wanted to check whether the voting ordered during the pandemic did not pose an epidemic threat. The investigation was discontinued on the same day, and disciplinary proceedings were initiated against Wrzoski.

Recently, the Associated Press agency, referring to the findings of the Citizen Lab expert group operating at the University of Toronto, reported that the KO senator Krzysztof Brejza, attorney Roman Giertych and prosecutor Ewa Wrzosek were under surveillance using Pegasus. According to Citizen Lab, Brejza's phone was allegedly hacked 33 times between April 26, 2019 and October 23, 2019. At that time, the politician was the KO's chief of staff before the parliamentary elections. The findings of Canadian experts regarding Brejza's phone were later confirmed by Donncha O'Cearbhaill, an expert from the Amnesty International Security Lab.

In the case of Giertych, in the past he was a representative of, among others, the head of PO Donald Tusk - as determined by Citizen Lab - his phone was attacked 18 times in 2019. According to Canadian experts, with the help of Pegasus you can e.g. record conversations, read messages, track location, as well as view and eavesdrop on a regular basis using the camera and microphone in the device.

President of PiS, Deputy Prime Minister Jarosław Kaczyński in an interview with the weekly "Sieci" said, among others, that "Pegasus is a program used by services fighting crime and corruption in many countries; its creation and use is the result of technological change, development encrypted communicators that cannot be read with old monitoring systems" and that "it would be bad if Polish services did not have this type of tool". He assured that it was not used against the opposition. "This is complete nonsense," Kaczynski declared. He also emphasized that the surveillance system in Poland "is one of the most rigorous in Europe".