European Court Of Human Rights May Have Just Outlawed Mass Surveillance Without Most People Realizing It

Legal Issues

from the so-now-what? dept

While much of the focus in the past few years has been on surveillance conducted by the NSA for the US, it should be noted that many European countries do a ton of surveillance too — often with fewer restrictions (though they may not be as good at it). And while there have been some high profile legal attacks on the surveillance done by the UK’s GCHQ (a close partner of the NSA), CDT is noting that some little-watched cases in the European Court of Human Rights may have technically outlawed mass surveillance without most people even realizing it. It’s two separate cases in particular, Roman Zakharov v. Russia and Szabo and Vissy v. Hungary:

In Zakharov, the Court alluded to the possibility of broad indiscriminate surveillance only in passing, since the scenario it was considering was one in which the security services could start intercepting a telephone conversation at any time, but were not explicitly alleged to be intercepting all conversations (or related data such as the time and duration of calls) at all times.  The Court found that a government may only intercept telephone communications where the body authorizing the surveillance has confirmed that there is a ?reasonable suspicion? of wrongdoing on the part of ?the person concerned.?  This language, along with the Court?s statement that a surveillance authorization ?must clearly identify a specific person ? or a single set of premises? as the subject of the monitoring, seemed to set the stage for a ruling that UK-style society-wide surveillance programs such as Tempora are illegal under the ECHR.

In an unexpected form, that ruling may have arrived.  Noting (as the Zakharov judges also did) that ?a system of secret surveillance ? may undermine or even destroy democracy under the cloak of defending it,? the Court in Szabo and Vissy considered whether the challenged Hungarian laws provide ?adequate and effective guarantees against abuse.?  The answer was no: the phrase ?strictly necessary in a democratic society,? the Court explained for the first time, means not only that a surveillance measure must be strictly necessary for ?safeguarding the democratic institutions? at a general level, but must also be ?strictly necessary ? for the obtaining of vital intelligence in an individual operation.?  Crucially, the Court added that the Hungarian authorities must therefore interpret a law allowing surveillance authorizations to apply to ?a range of persons??which, as the Court observed, could potentially include everyone in Hungary?very narrowly.  According to the Court, the body authorizing the surveillance must ?verify whether sufficient reasons for intercepting a specific individual?s communications exist in each case.?

In other words: no gathering of an enormous indiscriminate haystack in order to search for a needle.

As the blog post from CDT recognizes, there is at least some confusion over what this ruling really means. So it’s not as if it’s entirely clear cut that mass surveillance has been banned in Europe. But, it’s quite likely that these rulings will be relied on in other cases as well, and the fact that there are statements that basically require “individualized targeting” certainly suggests that most mass surveillance programs are illegal in Europe. That could make things fairly interesting for the many, many surveillance programs around Europe that are not even remotely close to “individually targeted.”

Filed Under: eu, europe, european court of human rights, mass surveillance