Elver Loho, a board member of the Internet Community NGO, believes Estonia's leadership needs to be far more explicit in explaining what, if any, data it obtained under the US PRISM surveillance program. He authored the following opinion piece, which originally appeared on uudised.err.ee.
The world's security and intelligence establishment has a nice JOKK scheme going, as Estonians call a situation wherein derrieres are covered, legally speaking, but which is still highly unethical.
Many countries prohibit conducting unwarranted spying on their residents. For example, in Estonia, an Intelligence Agency employee must get permission from a judge to violate the "secrecy of messages" (the legal term) of a person of anyone living here.
In the words of Ants Frosch, former head of the Intelligence Agency, this is a formality and the request is sure to be granted, but that is not the point of requiring judicial consent. The point is that a paper trail is left which can then be audited, for example, by the special Parliamentary committee on oversight of security agencies. Whether they actually do that or confine themselves to long coffee breaks, as their fully public annual reports hint, is their own business.
But in any case, what is there to do in a situation that calls for eavesdropping on someone but where no judicial trail must be left? It's simple: outsourcing. Let spies from a friendly neighboring country do the violating of the secrecy of messages. And afterwards, have them send you the information. Everything is JOKK: the laws of neither country have been broken, because laws are territorial, as are constitutional rights.
What Prime Minister Andrus Ansip said in question hour in Parliament last Wednesday to Olga Sõtnik and Andres Anvelt was just this sort of JOKK answer: Estonian intelligence have not (to the knowledge of the prime minister) received from their partners any information related to the illegal compromising of anyone's secrecy of messages.
The question that the prime minister should actually be asked is as follows: have Estonian security and intelligence agencies received from their foreign partners information on Estonian citizens or residents that is essentially based on that individual's private messages, or contains them, without first obtaining a court warrant that allows that individual's secrecy to be violated.
The extension ad absurdum here would be to speculate that such a scheme could be used to give the prime minister a weekly overview of the correspondence of some competing party's that was put together on the basis of data gathered by the US. A JOKK scheme is in place, and the question is not whether this is being done, but rather whether such a possibility exists and what or who protects against it.
For those inclined to comment along the lines of "why defend a crook?", I would remind you that even an intelligence or law enforcement agent is human, especially in our small country, and a whole series of articles could probably be penned about former spies or informers who became successful businessmen surprisingly quickly upon returning to civilian life. Knowing your competitor is half the battle in the business world.