President of the Hungarian Bar Association and several other lawyers targeted with Israeli spyware Pegasus
July 20. 2021. – 09:40 PM
Client-attorney privilege does not seem to protect lawyers from becoming targets of surveillance. János Bánáti, the President of the Hungarian Bar Association, was targeted during a famous murder case, while another lawyer became a target at the time when he wanted to run against the Fidesz mayor of a small town during the last municipal elections.
On a warm June morning, János Bánáti enthusiastically showed the elegant building of the Budapest Bar Association to his guests, a Hungarian and two German journalists. When the reporters asked him whether lawyers should be afraid of surveillance, he did not seem to be concerned.
Bánáti had been the president of the Budapest Bar Association for a long time, and he proudly showed his guests that his portrait still hangs on the wall next to the portraits of other former presidents. Currently, Bánáti is the president of the national Hungarian Bar Association, headquartered in the same block. There is probably no one in today’s Hungary who knows the internal affairs of the Hungarian legal world better than he does.
“I don’t hear any complaints from lawyers that they would be under surveillance,” said Bánáti confidently. He is not only the president of the Hungarian Bar Association but also one of the best-known and most respected defense lawyers in the country. He claimed that, to his knowledge, lawyers mostly get caught up in surveillance when they talk to a client who is already under surveillance.
Yet, Bánáti personally could have had a reason for concern. Bánáti’s telephone number appeared on the leaked list that includes the potential targets selected by the Hungarian operators of the Israeli cybersecurity company NSO. According to all indications, the Hungarian operator was a Hungarian state body. In addition to Bánáti, we identified nine other Hungarian lawyers among the potential targets, including defense lawyers working on criminal cases and lawyers dealing with civil law (business, real estate, compensation, etc).
“What I said, I said it honestly, I didn’t know about it,” Bánáti said a couple of weeks later, when we told him during a second personal meeting that his phone number was also among the targets. “In today’s world, we have to live together with these technologies. I had nothing to fear,” the lawyer explained, who received the news without any particular worries. “Anyone, who has been a defense lawyer for 30-40 years, working on cases of such magnitude as I do, cannot live in fear of surveillance,” he said, adding that “one's daily life cannot be affected by the fact whether they are now being followed, surveilled or observed.”
Leaked information about 50,000 phone numbers from around the world, targeted by NSO spyware, were obtained by the nonprofit journalism organization Forbidden Stories and advocacy group Amnesty International and shared with 16 media outlets, including Direkt36. The fact that a phone number appears in the database does not necessarily mean that it has indeed been targeted by the spyware called Pegasus and that the phone has been hacked. However, in many cases, a subsequent forensic analysis confirmed that devices had been infected with Pegasus.
Direkt36 has revealed that Pegasus has been used against journalists and businessmen critical of the government. We reported that in 2018, people close to former oligarch Lajos Simicska, including his lawyer Csaba Nagy Ajtony, were also among the targets.
The fact that lawyers have also become targets shows how widespread such operations are in Hungary.
Bánáti and other lawyers may have been targets even though the confidentiality of communication with clients – commonly referred to as professional secrecy or the attorney–client privilege – is one of the basic foundations of a lawyer's work.
It was not possible to conduct a subsequent forensic analysis on the phones of the targeted lawyers, so it is not known if their devices were actually hacked with Pegasus. In case they were, it was possible to monitor not only their phone calls, but all communication carried out through the devices.
Although there is no clear evidence that lawyers were targeted with Pegasus for political reasons, representatives of the profession have had several conflicts with the government in recent years. A number of lawyers objected to measures that they say undermined the independence of the judiciary, and also spoke out when the government attacked lawyers filing damages lawsuits against the state on behalf of convicts, labelling this process as “prison business”.
The Hungarian government did not provide any substantive answers to a detailed set of questions on the use of Pegasus, including specific questions about the potential surveillance of lawyers. They told the international consortium of journalists that “we are not aware of the alleged data collection claimed by the request,” adding that Hungary is “a state governed by the rule of law, and thus always acts in accordance with the law in force, in case of all individuals.”
Due to the legally fortified institution of the attorney–client privilege, surveillance of lawyers may seem unusual. In fact, however, the rules of secret information gathering are so loose in Hungary that it is possible that lawyers become targets of surveillance in a legal way. Authorities – national security services, in particular – can monitor virtually anyone on a very large scale and with very little external control, even with intrusive spywares such as Pegasus.
“There is total control, the extent to which personal rights are protected is determined by the authorities’ self-restraint,” Dr. László Hegedűs, a lawyer and deputy president of the Budapest Bar Association, who previously dealt with the issue of surveillance of lawyers, told Direkt36.
Depending on which authorities perform them, secret information-gathering operations basically have two categories. In the case of operations carried out by national security services, there is essentially no substantive external audit. They only need the permission of the Minister of Justice, but, in some cases, they can start covert information-gathering even before obtaining permission.
Slightly stricter rules apply when law enforcement authorities (police officers, tax investigators, etc.) conduct surveillance during the investigation of an alleged specific crime. They must obtain judicial permission to do so, and if the target is charged because of the surveillance, the data collected during the operation must be “opened up” – that is, to be included in official investigative documents, which will be made available for the suspect.
According to Hegedűs, the rules of criminal law state that lawyers may only be the subject of secret information-gathering if they are specifically suspected of a criminal offense. The lawyer will only be informed if he or she is specifically suspected of a crime, and the information gathered through surveillance or other secret methods become part of the investigation files. Thus, if a lawyer does not get charged in a case, they will never know if authorities had access to confidential information, including communication with clients.
However, according to a former senior counterintelligence officer, anyone can become the subject of surveillance during a national security operation regardless of occupation. “In such cases, the fact that someone is a lawyer is not relevant. A lawyer can be surveilled even if he is not the primary target, but, for instance, only closely related to the target,” said the former officer. He added that lawyers can also be used as informants without a problem, and secret information gathering may be used at the beginning of their recruitment, during the so-called “approach” phase.
In the case of the secret services, special legal experts ensure that requests for surveillance are sent to the Minister of Justice with justifications that will not be refused. “Our lawyer’s job is to find a way how we can do something, not how we cannot,” said another former high-ranking secret servant who has been involved in several surveillance requests, none of which were refused.
In practice, there are “signature days” every week when surveillance requests in sealed envelopes are collected and handed over in person to the minister – currently, Judit Varga, Minister of Justice – or to the judge, with whom the leaders of the secret service establish a regular personal working relationship.
“It's just a formality. In fact, if you've known each other for a long time, sometimes you don't even have to go there in person. Their job is simply to believe me and sign the request,” the former officer said.
From the Gyárfás case to the small-town election
Direkt36 spoke to three lawyers who were targeted with Pegasus. None of them became suspects in any criminal cases, and if their phones were infiltrated, they were never notified about it. Therefore, it is not clear why they could have been targeted.
Bánáti became a target at the end of 2018, when there was an ongoing investigation against one of his best-known clients at the time, Tamás Gyárfás, in connection with the 1998 murder of media entrepreneur János Fenyő. Gyárfás was the suspected instigator of the murder.
During this period, the authorities investigating the case directly approached Bánáti. The investigation revealed that Gyárfás had been blackmailed with a recording related to the Fenyő case, and messages concerning the blackmail were sent to Bánáti. Neither Bánáti nor his client notified the authorities about the extortion. Yet the police eventually found out about it, questioned Bánáti, who, in response, shared the extortion letters with the police.
Bánáti refused to comment on the complicated Gyárfás case and this particular episode, citing confidentiality rules. However, he said he always communicates discreetly to defend his clients’ interests. “I have never spoken about legal secrets on the phone, and I have also encouraged my clients to do the same. But honestly, mainly because I have always presumed that their phone could be tapped, not mine,” he said.
The other targeted lawyers are less known. None of them are public figures, so in their cases, it is even less clear why they could have been targeted with the Pegasus software.
One of the lawyers possibly targeted was baffled when we approached them, and, as they told Direkt36, they do not have any prominent clients or ones involved in politics and they have never sued the state, instead, this attorney mainly deals with insurance and compensation cases. However, the lawyer, who wished to remain unnamed in this article, told us about their previous political ambitions.
Back in 2019, at the time they were targeted, they considered running at a small-town mayoral election against a candidate of Fidesz.
In the end, however, they abandoned their political aspiration for the time being.
Another lawyer, who was contacted by Direkt36, was not surprised at all. The lawyer, wishing to remain anonymous, works in the special legal area of suing Hungarian state institutions for compensation on behalf of his clients, and suspects political reasons behind their possible tapping.
They said that since 2017, they have experienced signs of their phone being tapped. Similarly to the stories of others, the lawyer talked about strange telephone conversations where they heard the conversation suddenly stopping and being replayed from the beginning. "I don't want to put the crosshairs on myself even more. As they say, fear governs us," the lawyer explained why they wished not to disclose their name.
Panic among lawyers
This is not the first time that the issue of routine secret surveillance of lawyers has come up. In 2015, the Budapest Bar Association even launched an inquiry into how serious this problem is. The inquiry was prompted by a police investigation involving a former police general named Ernő Kiss as the suspect. It turned out that during this investigation, Kiss’s lawyer’s mobile phone and office was tapped.
“Are whole law firms under secret surveillance? Big Brother is watching, Little Brother is looking back...” read a headline about the case on the front page of the Bar’s newspaper, the Pesti Ügyvéd, in July 2015. According to the article, at a board meeting of the Bar, a member said that the wiretapping in the Ernő Kiss investigation was not an isolated case. The unnamed lawyer also said that according to “unofficial but reliable” information, certain law firms are tapped “in full” by state actors.
A committee set up by the Bar eventually concluded that the authority's conduct in the Ernő Kiss case was lawful. "It is not against the law to wiretap a law firm, especially in such a serious case,” said Dr. László Hegedűs, deputy chairman of the Bar, who chaired the ad hoc committee. By calling the case serious, he meant that Kiss was accused of bribery. He was suspected to demand one billion HUF from István Kocsis, a former state company leader, to help smooth the ongoing investigations against him, and the money transfer allegedly happened in the presence of Kiss's lawyer. (Kiss, who was convicted in 2015, died of a heart attack a year later.)
Hegedűs said he was approached by about ten other lawyers at the time, who had suspected their surveillance, but in none of those cases could they prove that it had happened. Nevertheless, he thinks that these suspicions can still be true. In the cases of secret surveillance, “rules are quite permissive and even these are not necessarily respected.” “We can’t even find out about it,” he added, because if a lawyer is placed under covert surveillance but does not eventually become a suspect, they will never be aware that it ever happened.
The replayed phone call
Another lawyer, Dr. Tivadar Hüttl, learned by his own example how difficult it is to nail down details of potential surveillance cases.
Like the story of one of the lawyers requesting anonymity, it also started with a replayed phone call. Hüttl, who works for a human rights NGO called Hungarian Civil Liberties Union (TASZ), received a phone call in September 2015 from opposition politician Benedek Jávor, then a member of the European Parliament, but the line was broken up after a minute. Jávor later reported in a Facebook post that after the line broke up, he heard on the phone their conversation being replayed from the beginning. Jávor suspected that this was a sign of their phone being tapped.
Hüttl contacted the ministers overseeing the Hungarian secret services, but received no convincing answers. Both the Ministry of the Interior (overseeing the internal secret services) and the Pime Minister’s Office (then overseeing foreign intelligence services) told him that no “illegal surveillance” was carried out against him. The Ministry of Defense, overseeing the secret services of the military, claimed that they did not collect secret intelligence about Hüttl.
The lawyer then turned to the Hungarian parliamentary committee on national security, which is responsible for overseeing all secret services, including investigating complaints about the activities of the services.
However, a majority of committee members decided not to launch an investigation into the matter.
The decision was made in a closed session, so it is unknown who voted against it, but opposition members have long complained that the pro-government majority frequently obstructs investigations on sensitive matters.
Hüttl therefore appealed to the Strasbourg-based European Court of Human Rights, where his case is ongoing. In his briefing, the lawyer wrote: “Since what has happened, I try to talk about delicate matters with my clients in person. The fact that there is a real possibility of secret surveillance makes my daily work difficult.”