Polish Senate calls Pegasus illegal and demands scrutiny over secret services

The Senate of Poland concluded its investigation on the use of Pegasus by Polish secret services to spy on ia. opposition politicians and unapologetic public persons. They declared that Pegasus should be considered illegal in Poland and the secret services should be put under strict and independent scrutiny. Doubts also arose around the fairness of Poland's 2019 elections.

Pegasus affair in Europe and Poland

All hell broke loose towards the end of 2021, when Canadian tech NGO Citizen Lab and Apple discovered that  governments around the world used Pegasus to spy on activists and journalists, Citizen Lab and Apple and not only published the news, but also informed each detected victim individually that their devices may have been hacked with the spyware.

The Polish ruling party (PiS) pretended nothing had happened. However, the Senate, with the majority held by the opposition, did not. In January 2022, a special committee was established to investigate the cases of illegal surveillance, its impact on electoral process, and to discuss the reform of the secret services.

The committee members met with the victims of illegal surveillance and asked a number of experts (including Panoptykon) for written opinions on the case. On 6 September 2023 a report was published, summarising the committee’s findings and recommendations.

It emphasised that:

1. Pegasus spyware was used against people whose only fault was to criticise the ruling party,
2. constitutional standards were breached in the procedure.

Polish Senate’s recommendations in line with NGOs appeals

Among the committee’s recommendations, two are particularly crucial to enhance the protection of fundamental rights and freedoms:

1. scrutiny over secret services’ activity: a mechanism of viable and apolitical scrutiny should be introduced without further delay,
2. right to be informed: individuals who had been under surveillance should be informed about it.

These recommendations are in line with the appeals of Panoptykon Foundation. On 4 September 2023, just a few days before, the committee's report was published, all opposition parties received Panoptykon’s outline of law on scrutiny over secret services activity. Panoptykon – supported by legal and civil society groups – proposes a list of ready measures, especially on the right to be informed and scrutiny mechanisms.

Spyware and the fairness of elections

Surveillance of the leader of opposition electoral staff by the Polish Central Anticorruption Bureau cast doubts on the fairness of 2019 parliamentary elections in Poland. “If the Polish Highest Court knew in 2019 what is presently known, it would have called the 2019 elections invalid”, said the Senate, repeating the opinion of the two renowned constitutional lawyers and former heads of National Electoral Commission, Wojciech Hermeliński and prof. Andrzej Zoll.

“Something is changing in the political debate. Politicians began to openly discuss the need for reform in the area of secret services. However, this discussion is long overdue and it is too late to guarantee the fairness of the upcoming elections”, comments Wojciech Klicki, lawyer at Panoptykon, and the author of the outline of law on scrutiny over secret services activity.

The committee’s report was approved by the Senate on 7 September 2023. Parliamentary elections in Poland will take place next month, on 15 October 2023.