- It didn’t happen
- But it’s legal
- Others are doing it, too
- Are you a foreign agent?
This is a developing story (read more here), but there is nothing surprising about it. In short, the Hungarian government (among other autocrats) has been caught using a spy software called Pegasus to spy on journalists and opposition elements.
It appears that requests for comment by journalists tended to be followed by breaking into their phones. Orbánist politicians never talk to independent journalists, but they do get incensed when approached or even asked. (That is why they were banned from parliament, and the overactive speaker of the house even tried to make rules that they can’t approach politicians, ever.) Sending these requests for comments was, according to the new information, not only futile but it put the journalists on the map of state surveillance.
In their first reaction the government issued the most Orbánist statement, a real capsule of our times.
It states that they “weren’t aware” of any such thing happening, which – if true – would be even more hilarious. At any rate, ending the statement demanding to know who told you about it (the thing we are not aware of) is a bit off.
Secondly, the statement is quick to point out that other countries are doing it, too. Supposed real democracies, western democracies, etc. are also caught spying on their citizens from time to time.
Pushing the accusations back at the accusers is standard autocrat tactic. If, for instance, a journalist would be attacked, Orbánists wouldn’t shut up telling you that in the Netherlands a journalist was shot dead – are you trying to say that the Netherlands is not a democracy?
The method usually works because 1) there is no follow-up question, and if there was one, 2) the counter-argument is too complex to explain.
Namely, that there is no perfect system, every state is prone to serve itself and abuse its power when it can (such as conducting surveillance on its own citizens), but the degree to which they allow themselves to abuse their power still matters.
And is also matters whether they can get caught and be shamed if they are found out. The NSA may have done things, but the degree and scope of that pales next to what the Gestapo, the Stasi, the KGB and their descendants allowed themselves in unfree parts of the world, not to mention China where surveillance is practically state religion these days and journalist and dissenters are legitimate state targets.
But the most important difference is that in a free country there is an actual outrage and backlash when such an abuse is unearthed.
It is not just that in the free world there are journalists who dig it up and publish it. It is even more than having institutions that are tasked to do something about it. The real difference is the existence of a healthier public opinion that believes that it matters and there is an outrage. Because that is where a pushback for freedom begins.
In an unfree place outrage has been methodically killed off, if it ever existed, civic nerves have been cauterized, the public desensitized to such abuses of power. Victims of state abuse are coming up with excuses themselves why it is OK (because they feel helpless against it and that feeling sucks) and their governments are helping them by loud propaganda, supplying excuses. There will be no pushback because there is no outrage anymore.
And Hungary is precariously close to that point – and it was even closer before 2019, when cracks started to appear on Orbán’s system. Decades of socialist autocracy following decades of nationalist autocracy has done its work on minds and hearts and outrage is more and more subdued, lest we are left to feel angry but utterly helpless.
So yes, every government is prone to serve itself and start to abuse its power in one way or another. But it matters whether it is systematic, whether there are institutions to uncover it, and most importantly, whether it is legal.
Because that is the third argument the statement made: that it would be legal. And it would.
It has happened very early under Orbán, at the times when anyone warning about his openly autocratic ambitions was dismissed abroad. It was a time when there was no opposition to speak of, there wasn’t anyone who could react to the outrages happening in quick succession. They have been rewriting the constitution, staffing the court, Orbán nationalized and then misspent the entire private pension wealth of the country just to start fattening his men. In the flurry of events that overwhelmed even the media, some more menacing things went down barely noted as they were quickly eclipsed by other scandals. Such is the creation and total empowerment of Orbán’s little private army/secret service, called TEK, stuffing them with money and enabling them without limitations, including in the field of surveillance. In 2012 Kim Lane Scheppele, expert on Hungarian constitutional law at CEU, has published a piece about it in the NYT (emphases mine).
“Few have taken TEK seriously. But that is a big mistake. In fact, TEK seems to be turning into Prime Minister Viktor Orbán’s own secret police. In less than two years, TEK has amassed truly Orwellian powers, including virtually unlimited powers of secret surveillance and secret data collection.
“TEK was created in September 2010 by a governmental decree, shortly after the Fidesz government took office. TEK exists outside the normal command structure of both the police and the security agencies. The Prime Minister directly names (and can fire) its head and only the interior minister stands between him and the direct command of the force. It is well known that the head of this force is a very close confidante of the Prime Minister.
“TEK was set up as an anti-terror police unit within the interior ministry and given a budget of 10 billion forints (about $44 million) in a time of austerity. Since then, it has grown to nearly 900 employees in a country of 10.5 million people that is only as big as Indiana.
“…Its powers have been added slowly but surely through a series of amendments to the police laws, pushed through the Parliament at times when it was passing hundreds of new laws and when most people, myself included, did not notice.
“What can the TEK do?
“TEK can engage in secret surveillance without having to give reasons or having to get permission from anyone outside the cabinet. In an amendment to the police law passed in December 2010, TEK was made an official police agency and was given this jurisdiction to spy on anyone. TEK now has the legal power to secretly enter and search homes, engage in secret wiretapping, make audio and video recordings of people without their knowledge, secretly search mail and packages, and surreptitiously confiscate electronic data (for example, the content of computers and email). The searches never have to be disclosed to the person who is the target of the search – or to anyone else for that matter. In fact, as national security information, it may not be disclosed to anyone. There are no legal limits on how long this data can be kept.
“…TEK agents don’t have to go to a judge for permission to spy on someone – they only need the approval of the justice minister to carry out such activities. As a result, requests for secret surveillance are never reviewed by an independent branch of government. …
“TEK’s powers were enlarged again in another set of amendments to the police law passed on 30 December 2011, the day that many other laws were passed in a huge end-of-year flurry. With those amendments, TEK now has had the legal authority to collect personal data about anyone by making requests to financial companies (like banks and brokerage firms), insurance companies, communications companies (like cell phone and internet service providers) – as well as state agencies. Data held by state agencies include not only criminal and tax records but also educational and medical records – and much more. Once asked, no private company or state agency may refuse to provide data to TEK.
“…After December 2011, their data requests no longer had to be tied to criminal investigations or be approved by the prosecutor. In fact, they have virtually no limits on what data they can collect and require no permission from anyone.
“If an organization (like an internet service provider, a bank or state agency) is asked to turn over personally identifiable information, the organization may not tell anyone about the request. People whose data have been turned over to TEK are deliberately kept in the dark.”
Whatever is described there has only got worse since – its size, its budget, its powers – but it is next to impossible to follow, since the avalanche of overnight legislations and decrees have never ceased to come.
So what was described in the Pegasus leak is really just their job and total surveillance by any means is not illegal. Why would the use of specialized software to carry out their legal task be illegal? The only sad thing is that even in the possession of such powers, they needed to buy software from an Israeli private firm to do so.
So the first part of the argument is true. It could have been carried out “in accordance with the law in force“.
Whether it was “regularly monitored by governmental and non-governmental institutions” is a different matter. But I wouldn’t be surprised if such a technically non-governmental institution would exist somewhere.
The last argument the government’s statement made was that one has to be a foreign agent, a Soros mercenary, an evil anti-revolutionary to ask such questions. Such a bad-natured and dictator-like accusation would be odd to hear from the government of a free country in response to accusations of power abuse. They would be busy denying the wrongdoing and organizing the cover-up. Not scolding the journalists who ask the questions.
At one point we start appreciating even the pretense of legitimacy. Because when the autocrat stops pretending, when he stops denying and supplying excuses, we are left with something even worse than empty pretense. We have open oppression.
https://platform.twitter.com/widgets.js” data-wplink-url-error=”true”>Edward Snowden said that “we are not aware” is the most incriminating answer a government can give. But Snowden is still a child of the free world. If an autocracy reacts to such accusations, it also throws in the three other ingredients: claiming that western countries are also doing it and that it is not illegal (we wrote the law, we should know).
But the government may have a point about the hidden agenda behind the leaks’ timing. Why now?
We have known about Pegasus for years. Also that they were selling it to autocratic governments.
So why the timing? Did the journalists just get to the end of their investigations by 2021, or is this the parting shot of the 2022 Hungarian election year? At least that is what it would look like to Orbán – ignoring that there are other autocrats incriminated in the leaks. Although none of the in Europe, claiming democratic credentials.
The other speculation that is making the rounds is that the Pegasus leak was made possible by the removal of Netanyahu, Orbán’s big buddy, from power. If so, then it must be noted that autocrats can go from each other’s greatest support to each other’s greatest liability in a heartbeat.
UPDATE July 28, 2021 – After 10 days of chaotic communication and non-answers and counter-accusations by the responsible ministers the interior minister set a new tone. When asked by a journalist (which is deemed harassment by Fidesz) he first claimed that he cannot answer because it would risk state secrets, then he suggested that the journalist could be in trouble for inciting him if he accidentally divulged such state secrets when provoked by journalists’ questions. Earlier the same week he turned up at the meeting of the national security committee of the parliament but, alas, Orbánist members of the committee failed to show up so the meeting had to be dismissed. Oh well, at least he tried.