Electronic Surveillance in Poland

November 15, 2023

Executive Summary

  • Introduction. National-security surveillance in Poland is conducted both by law-enforcement and intelligence agencies.
    • The available public information suggests that electronic surveillance is heavily used by domestic security agencies responsible for law enforcement and the protection of public order.
    • Little information is available about overseas surveillance conducted by Poland’s foreign-intelligence agencies.
    • Poland’s system of intelligence and security services is complex and opaque, encompassing roughly a dozen institutions with various responsibilities.
  • Recent controversy. In recent years, surveillance powers have become entangled in political and constitutional struggles between the Law and Justice (PiS) party and its opponents.
    • The constitutional crisis in Poland has also affected the intelligence services’ institutional safeguards, professionalism, and legal compliance.
  • Agencies that conduct national-security surveillance. Five agencies have the status of “special services”:
    • Two are foreign-intelligence agencies: the civilian Intelligence Agency, AW, and the Military Intelligence Service, SWW.
      • AW and SWW can collect electronic communications and signals intelligence from abroad but can also operate in Poland, with the assent of the domestic agencies, if external operations require it.
    • Three others have a domestic focus:
      • The Internal Security Agency, ABW. The ABW focuses on domestic counterintelligence, protecting classified information, and investigating other violations of laws affecting national security.
      • The Central Anti-Corruption Bureau (CBA), a law-enforcement body, which combats corruption, fraud, and embezzlement of public funds.
      • The Military Counter-Intelligence Service, SKW.
    • Various other law-enforcement institutions and security forces can also use surveillance techniques and tools for operational activities.
      • These include the Police, Border Guards, National Revenue Administration, Military Police, Office for Internal Oversight of the Ministry of the Interior and Administration, State Protection Service, and Penitentiary Service.
    • Formally, the Prime Minister appoints the heads of these agencies, either directly or through the relevant minister.
      • Ministers directly supervise services within their remits and have the power to draw up guidelines, formulate and implement operational plans, and authorize the use of appropriate methods and tools, including electronic surveillance.
  • Surveillance laws. A 2014 judgment of the Constitutional Tribunal found existing laws insufficient and ordered Parliament to amend the legislation governing the intelligence services.
    • After the PiS assumed power in 2015, it enacted new laws that substantially broadened the powers of the special services.
    • The Surveillance Law of January 2016 authorized the security services to collect and process communications metadata, including those unrelated to a crime.
      • Metadata can be collected automatically from electronic communication operators and service providers without judicial pre-authorization.
    • The 2016 Act on Anti-Terrorist Activities further broadened the services’ powers.
      • The Internal Security Agency (ABW) was authorized to wiretap foreigners suspected of terrorist activities without court orders.
      • The Act also opened the door wider to using the fruits of wiretaps to file charges and initiate criminal investigations of foreigners suspected of crimes.
      • Another amendment to the Code of Criminal Procedure allowed prosecutors, in their discretion, to use evidence obtained from unlawful surveillance in criminal proceedings (“fruit of the poisonous tree”).
  • Process and Standards for approving surveillance. Operational surveillance in Poland takes two forms: targeted wiretapping and bulk metadata collection.
    • Targeted wiretaps require a court order from the District Court in Warsaw (for military intelligence services, the Military Court in Warsaw).
      • Before seeking a court order, the head of the relevant service must request approval from the Public Prosecutor.
      • Judges are obliged to approve the order if the application contains the correct elements and conforms to the principles of proportionality and subsidiarity (least restrictive means). Nearly all applications are approved.
      • The maximum period for operational surveillance is 18 months, which for the counterintelligence services (ABW and SKW) can be extended for another year.
      • The number of applications for targeted surveillance has increased in recent years. In 2021, there were 7,000.  Most were from the Police (85% in 2021), followed by the Border Guard (4.1%), Anti-Corruption Bureau (CBA, with 3.1%), and Internal Security Agency (ABW, with 2.5%).
    • Metadata collection can include telecommunications, postal, and internet data, but telecommunications metadata represents more than 90% of overall collection.
      • Metadata may be processed for the purposes of either judicial proceedings or operational surveillance by security agencies.
      • In the case of judicial proceedings, judges or prosecutors are empowered to obtain metadata and process it. No ex-post oversight is required.
      • For operational surveillance, no judicial authorization is required. The subsidiarity clause (least restrictive means) does not apply, and companies are required to provide access.  Nor is there ex post judicial review.
  • Nationality of the target plays an important role in Polish surveillance law.
    • The Anti-Terrorist Act of 2016 legalized wiretapping of foreigners suspected of involvement of terrorist activities without judicial approval.
    • There are no legal restrictions on domestic collection targeting people located abroad.
  • Intrusion software purchased from abroad has triggered intense controversy in Poland.
    • The Anti-Corruption Bureau bought the Pegasus tool from the Israeli firm NSO.
    • Pegasus was then used against political opposition and civil-society activists, triggering domestic controversy and drawing international attention.
  • Oversight. Poland’s oversight mechanisms are fragmented and struggle to provide effective, impartial, independent verification of the activities of the special services.
  • Legislative oversight is exercised by the parliamentary Special Services Committee. The Committee is composed of up to seven members of the Sejm representing major parties.
    • As of this writing, four members came from the governing PiS party.
    • The Committee reviews draft laws and regulations related to the special services, their activities, alleged infringements of their authorities, budgetary matters, and proposals for appointment and dismissal of their leadership.
    • The Committee cannot compel testimony by agency personnel.
  • Ex-post oversight of surveillance is quite limited.
    • Since 2016, courts can review biannual statistical reports on metadata collection provided by the security services. However, courts rarely have bandwidth to probe more deeply, have few other sources of information on agency activities, and lack clear legal authority to impose sanctions or compel greater transparency.
    • The independent office of the Ombudsman (Commissioner for Human Rights), conducts ex post oversight of individual activities of the security services to ensure civil rights compliance.
      • The Commissioner voiced deep concern after the legislative changes in 2016 and generally has sought to improve legal safeguards for citizens exposed to surveillance by security services, including Pegasus.
    • The Supreme Audit Office (NIK) is subordinate to the Sejm but retains independence regarding the audit process. It oversees security agencies to ensure the efficiency and integrity of their activities and spending.
      • In its recent pronouncements, the NIK has been critical of the services and of existing human-rights safeguards. Its President has lamented the difficulty of effective oversight in the prevailing political circumstances.
  • Transparency. Poland made significant progress on transparency during the post-Communist transition, adopting a legal framework for freedom of information and improving accountability of the secret services.  In recent years, however, the level of transparency has declined.
    • Publicly available reports document the scale of surveillance by police agencies.
    • There is less information about surveillance by the secret services.
      • Only the Anti-Corruption Bureau continues to publish an annual report on its activities. The Internal Security Agency (ABW) ceased to publish annual reports in 2016.
  • Public opinion. Thus far, Polish public opinion has not been galvanized by the civil-liberties risks created by large-scale electronic surveillance.  Polling suggests that many Poles view debates over surveillance as an element of the broader struggle over the country’s political future.

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Artur Gruszczak

Professor of Social Sciences, Chair of National Security, Faculty of International and Political Studies, Jagiellonian University in Krakow