Nokia threatens government after being caught doing 'illegal' snooping

Petri Sajari - Special Investigation
         
This is an extraordinary story about the power of a mighty multinational and politicians in a liberal Scandinavian country prepared to trade civil rights for economic favours.

In April 2005 the Finnish National Bureau of Investigation (NBI) received a criminal complaint - a suspicion that corporate secrets had been leaked to the Chinese Huawei company via e-mail. The complaint was made by Nokia, the world's largest manufacturer of mobile telephones.

A Nokia employee had noticed at a telecommunications fair in Cannes in February 2005 that the power unit made by its competitor Huawei had characteristics that bore an uncanny resemblance to a product that Nokia was putting on public display for the first time at the same fair.

Nokia needed evidence of a leak, so it began to dig through the identification information of its employee e-mail.
         
Legal experts say that the company should not have done that; Nokia had technically violated its employees' fundamental right to confidential communications.

But the company felt that it was the law, and not Nokia that had got it wrong.

The issue was so important for Nokia that it took out its most severe weapon. It threatened that it would leave Finland if the law was not changed, taking with it tax revenues worth EUR 1.3 billion and 16,000 jobs.
This put politicians in high gear, and that is how the Lex Nokia was started.
         
Parliament will decide in a couple of weeks on a proposed amendment to the law on data protection in communications. The bill is known better by the name Lex Nokia. Civic groups opposed to the measure have called it a snooping law.

Lex Nokia is an appropriate name, as the bill is a master stroke of lobbying.
Nokia has made sure that important figures from employers' organisations to labour unions, from civil servants to legislators, have been made to understand in good time how important the bill is for Finland's largest corporation.
         
The proposed legislation also reveals Nokia's exceptional influence in Finland. The strength of the company has made many officials turn a blind eye to the problems contained in the bill.
But what does Nokia actually want with the proposed change?

The bill would give employers the right to check on information contained in messages sent and received by employees in their company e-mail. The information includes the sender or receiver of the message, the size of the message, and the time that it was sent, and the type of attachment that they contain. Automated monitoring would not require suspicion of any wrongdoing, and the employer would not be required to ask anyone for permission for the surveillance.
         
In addition to employers, the proposed law would give snooping rights to offices, libraries, universities, schools, and even apartment buildings that have communication networks of their own. For instance, a house manager would be allowed to monitor Internet activities of residents if there is a suspicion that the house network is being used in violation of house rules.

The bill is contradictory in that the information that is being sought is not enough to indicate if the message itself, which the employer would not have access to, contains any company secrets. Nevertheless, supporters of the bill believe that with increased supervision, employees will be more cautious about what they undertake.

Helsingin Sanomat newspaper in Finland has interviewed dozens of civil servants, politicians, and labour market figures who have taken part in the preparation of the bill.
         
Because of Nokia's influential status, none of them want to discuss the issue under their own name.
 "Nokia put very strong pressure to bear to win unanimous approval to the proposal already in the preparatory stages. The message that came through the Confederation of Finnish Industry (EK) was quite clear: if the bill is not passed into law, Nokia will leave Finland", said one civil servant.
 "It was a take-it-or-leave-it situation. Nokia organised big events with leaders of the central organisations present", said one influential labour market figure.
         
Huawei case looms in the background. It was then, at the latest, that Nokia became exasperated that it cannot monitor the e-mail traffic of its employees as closely as it would like.

The current law on data protection for electronic communications took effect in the autumn of 2004. Already before the law took effect, the then-Minister of Transport and Communications Leena Luhtanen (SDP) set a follow-up group to examine the impact of the law.

According to those who followed the preparations of the law, there was concern expressed in the business community that a law on the protection of privacy at work would excessively restrict the rights of employers.
         
A follow-up group of the Ministry of Transport and Communications then began, in complete silence, to prepare changes to the brand-new data protection law.

Those who were in key positions during the drafting of the legislation say that Nokia succeeded in convincing key civil servants of the necessity of such a law. Nokia claimed to have lost large sums of money through information leaks, and nobody questioned the veracity of those claims.

Civil servants did not see any constitutional problems in the matter.
 "When a matter involves a legislative proposal which affects fundamental rights, those preparing the legislation should be especially sharp and critical, if people other than officials try to affect the content of the law", says Mikael Hidén, Professor Emeritus of Constitutional Law at the University of Helsinki.
         
In the autumn of 2005 Finland got a new Minister of Transport and Communications. Luhtanen was replaced by Susanna Huovinen (SDP). Ministry civil servants presented the bill to Huovinen as a  "technical change".

One ministry employee felt that the problems of the bill and the disputes within the working group were kept hidden from Huovinen. However, the fresh minister had received word that the proposed law would violate the constitution.

Huovinen refused to bring the bill before the government. In the summer of 2006 she asked Chancellor of Justice Paavo Nikula for a statement. Nikula sharply denounced the proposal.
In the view of the Chancellor of Justice, fundamental rights should have been weighed with more precision and from more points of view than was done in the proposal.
This was a great setback to the business community, the ministry, and to Nokia. The plan to pass the bill into law quickly crumbled.

The civil servants of the Ministry of Transport and Communications started working on a new set of tactics.
         
In Nokia, the man responsible for turning the heads of civil servants and labour market organisations was Nokia's Executive Vice President for Corporate Relations and Responsibility Veli Sundbäck, according to those who were the targets of the lobbying. Sundbäck, who retired at the beginning of this year, is a former high-ranking civil servant of the Ministry for Foreign Affairs, who took part in the negotiations in Brussels on Finnish EU membership in the early 1990s.
Sundbäck could not be reached for a comment, and Nokia not want to comment on the bill to Helsingin Sanomat at all.
         
Those behind the bill noticed in 2006 that Huovinen and Milister of Labour Tarja Filatov (SDP) were not supporting the proposed legislation. More pressure was put on the labour market organisations. Those promoting the bill thought that the Social Democrats might be persuaded to back it if the strong labour unions were first convinced of the need for such legislation.

According to several civil servants, the Confederation of Finnish Industry (EK) was acting as Nokia's errand boy in the matter. Some civil servants suspected that Sundbäck had a direct line to Prime Minister Matti Vanhanen (Centre) at the time that the bill was being drafted.

When the labour market organisations were persuaded to back the bill, the Ministry of Transport and Communications began to market the proposal to Members of Parliament. Now the argument that was used was that the bill had extensive support in society. This was, in fact, the case, but what was not mentioned was that labour market organisations cannot take issue with citizens' fundamental rights.
         
While the lobbying and drafting of the bill was going on, Nokia continued to spy on the e-mails of its employees.
In January of 2005, before the Huawei case, Nokia had become the target of an investigation. The reason was that Nokia had gone through the sender and receiver data of its employees at the beginning of the decade. At that time Nokia had suspected that Microcel, an Oulu-based subcontractor of the Swedish Ericsson, had received information by e-mail about the security features of Nokia's new mobile phones.
However, the information that was gleaned did not yield enough evidence of an information leak, and the issue faded away.
         
In the spring of 2006 prosecutor Jukka Haavisto felt that Nokia had violated the law on communications privacy in the Microcell case. However, by that time, it was too late to prosecute.

Soon thereafter, in August 2006, Urho Ilmonen, Nokia's head of security at the time, asked the National Bureau of Investigation (NBI) to drop the investigation of the Huawei case. According to Nokia, the information from the e-mails was not sufficient evidence, that someone at Nokia would have been leaking corporate secretsIn the spring of 2007 Nokia tried once again to learn about a suspected crime with the help of e-mail information. One employee in Salo had criticised the company's management, because the bonuses that had been promised to the whole staff were not paid. The employee sent messages to thousands of other Nokia employees around the world. Nokia filed a criminal complaint alleging interference with data traffic. Prosecutor Antti Pihlajamäki felt that there was not enough evidence to justify prosecution.

All of this must have been very frustrating for Nokia.
         
In the autumn of 2006 the entire bill appeared to be in jeopardy on the basis of Nikula's statement.
Already in the spring, the labour market organisations had asked Law Professor Kaarlo Tuori for an expert opinion, hoping to overturn the paper from the Ministry of Justice that was very critical toward the bill. Although Tuori proposed many changes to the bill, it offered a straw that the Ministry of

Transport and Communications could grasp, allowing the process to move forward.
Later the ministry ordered a statement from Veli-Pekka Viljanen, a professor of constitutional law. However, his views were pushed to the side because they were too critical.
Finally, in the autumn of 2007, the proposal, which had been patched up many times, was almost ready. All that was left to be done was a review by the office of the Chancellor of Justice.
         
InJanuary 2008, Deputy Chancellor of Justice Mikko Puumalainen called the Ministry of Transport and Communications and demanded that the bill be removed form the government's list. He said that there were still shortcomings in the proposal, which the country's top official responsible for supervising the legality of state activities could not approve of.

A couple of months later, Chancellor of Justice Jaakko Jonkka decided that there were no legal impediments to the government's proposal. However, he informed Liisa Ero, director-general at the Ministry of Transport and Communications, that the bill remained problematic.
         
The bill was sent to Parliament in April 2008.

 "If the interests of one enterprise are decisive, the foundation for objective constitutional consideration will fall away", said Teuvo Pohjolainen, Professor of Public Law.
Listening to the professors was basically a formality, because even their severe criticism was not taken into account. In November 2008 the Constitutional Law Committee made a unanimous decision when it determined that the proposed legislation was not in violation of the constitution.
         
The chairman of the committee, Kimmo Sasi (Nat. Coalition Party) commented on the bill in Helsingin Sanomat on November 20th, 2008:  "Numerous experts have seen employers as being the equivalent of officials. We have interpreted the matter differently, because an employer is not an official, but rather a parallel citizen."
           
Defenders of the bill also state that employees at the workplace, using their employers' equipment are not entitled to completely confidential communications.Professor Ojanen feels that this point of view goes against rulings of the European Court of Human Rights.
           
 "It sounds a little like the way of thinking about institutional power in the 1930s. At that time the thinking was that in institutions such as prisons, people had no fundamental rights", Ojanen says.
 "On the basis of decisions of the European Court of Human Rights we are no longer in a situation in which an employee loses his or her fundamental rights when walking through the door of the workplace."

In addition to the legal experts, the bill has been tenaciously criticised by the civic group Electronic Frontier Finland. The organisation is involved in arranging a demonstration against Lex Nokia at the House of Parliament next Thursday.
         
The passage of the bill by Parliament in about two weeks is almost certain. Passage of the law was advanced by a statement by the Constitutional Law Committee, which allowed its passage as a normal law (and not as a constitutional amendment).

Now a Parliamentary majority - the support of the government parties - is sufficient. If the bill was to have been passed as a constitutional amendment, a five-sixth majority would have been needed.
           
Minister of Communications Suvi Lindén (Nat. Coalition Party) has seen to it that the largest government parties are behind the bill. Before the proposal was passed on to Parliament in the spring of 2008, Lindén spoke about it to the  "quartet" - the leaders of the four government parties.
         
Lindén noted that the government's policy programme promises to improve the protection of corporate secrets.

 "Legal protection of the individual will also improve, because the rules of the game will be clarified. Existing legislation already vaguely allows the handling of the information when there is suspicion of abuse", she says.
           
The only minister to submit a dissenting opinion was outgoing Green League chairwoman, Minister of Labour Tarja Cronberg. Her fellow party member, Minister of Justice Tuija Brax, supported the bill, but is not speaking very enthusiastically on its behalf.
           
 "The party's chairwoman negotiated a deal in the quartet, under which only one of the Green ministers is opposed to the bill", Brax says. She feels that the law improved in the final stages of preparation.
         
Prime Minister Vanhanen does not want to explain further why he supports the bill.
The opposition has been more critical. For instance, MP Erkki Tuomioja (SDP) feels that  "the law would expand the espionage society into a grey area".
           
Leading legal experts also find it incomprehensible that on the basis of the new law, private companies and organisations would be granted more power to curb fundamental rights than the police have.
         
 "The proposed law goes against nearly all principles of justice. This cannot be avoided, no matter how much the politicians try to claim otherwise", says Matti Tolvanen, Professor of Criminal and Procedural Law at the University of Joensuu.
           
 "The evidence value of the e-mail information is non-existent in a criminal process. It is quite strange that a private entity would need the information for something. In a country under the rule of law, the preliminary investigation of a crime should not be outsourced to a private entity, as is not being proposed."
         
Jukka Kekkonen, Professor of Legal history and Roman Law at the University of Helsinki feels that there has long been a tendency in Finland, either deliberate or unconscious, to increase the control over citizens. Lex Nokia is part of this trend. Kekkonen is also worried that authority to restrict fundamental rights is being granted to private entities.
           
 "It shakes the fundamental principles of the Western rule of law", he says.

Kekkonen feels that it is positive that the statements given to the Constitutional Law Committee by the legal experts were all in agreement.
           
 "It is not very common, and that is why the voice of the legal experts should have had special weight."
         
The turnover of Finland's largest company, Nokia, was EUR four billion more than the initial budget of the Finnish state for this year. Nokia's corporate tax in 2007 was EUR 1.3 billion - one fifth of the total yield of corporate taxation.
           
That is considerable leverage.Nokia's report on social responsibility states that the company respects human dignity and promotes human rights:  "Nokia recognises, together with the international community, that certain human rights are fundamental and universal, and are based on accepted international agreements and practices, such as the UN Universal Declaration of Human Rights."
         
Professor Ojanen feels that the view the European Court of Human Rights would be needed for Lex Nokia. He hopes that some civic organisation would bring the matter before the court.
           
 "The European Court of Human Rights has at times handled questions of abstract legislation, if there is reason to suspect a violation of the eighth article of the human rights treaty", says Ojanen, with reference to an article in which each individual is guaranteed the right to a private life.
           
 "If the court feels that the law violates the human rights treaty, it will give a ruling on it. It would be impossible for Finland to bypass it."
           
According to Nokia, universal rights include the right to an opinion, and a right to express opinions. Information and Technology Law Professor Jukka Kemppinen wrote in a statement that he gave to the Constitutional Law Committee that in the final instance, the bill is about the right to free expression.
           
About the breach of that right, that is