|Interested in FoE? Why not have a look at|
Wolfgang Benedek's and my book on the topic.
Find it here.
I’m heading to Strasbourg
today for an exiciting two-day conference on Freedom of Expression. You
can find the impressive line-up of speakers here.
I’m rapporteur for a session 5
– Decrypting the implications and
assessing the costs
of mass surveillance on freedom of expression with four exciting panellists:
- Mr David Kaye,
UN Special Rapporteur on the promotion and the protection of the right to
freedom of opinion and expression
- Mr Iain Cameron,
Professor, University of Uppsala, member of Venice Commission
- Mr Saša Janković,
Protector of Citizens, Republic of Serbia
- Ms Cécile de Terwangne, Professor, Law Faculty Namur University, Research Director for CRIDS
(Research Centre Information, Law and Society)
I’ve also been asked to prepare
a little introduction into the topic – here it is:
Mass surveillance changes people
Mass surveillance of Internet
traffic, as disclosed by Edwards Snowden, has changed the way people see the
Internet and act on it. It has shattered the (implied) trust placed in security
of the communicative networks, it has had chilling effects on freedom of
expression and the right to privacy, and it has deeply impacted the
relationship between states long adhering to the notion of positive social
change through a human rights-based information society. As a recent report on
mass surveillance by the Parliamentary Assembly of the Council of Europe
concluded, US agencies and their partners in certain Council of Europe member
states have introduced surveillance systems that escape democratic control and
accountability and endanger fundamental rights, including freedom of
Mass surveillance has substantial 'costs'
The ‘costs’ of mass
surveillance over the Internet are substantial, the ‘benefits’ are demonstrably
small: when compared with targeted surveillance mass surveillance is not more
effective in the fight against terrorism and organised crime. Rather,
deliberate steps towards weakening encryption standards and installing ‘back
doors’ in secure communication services to facilitating data collection can
pose a serious threat to national security when exploited by bad actors.
Cooperation in the fight against terrorism and organized crime is essential,
but it must be based on mutual trust and anchored in respect for human rights
and the rule of law. The findings of the PACE report were echoed in a report
adopted by the European Parliament in September 2015 (2014/2232(INI)) that
underlined the importance of encryption and privacy, including a call for an
end-to-end encryption standard without ‘back doors’ for government agencies,
and strongly criticized the national security argument often used to justify
Almost all mass surveillance systems violate human rights
The European Court of Human
Rights has long established the principles under which freedom of expression
can be restricted. Applying its jurisprudence to mass surveillance meets
factual and jurisdictional difficulties, but not unsurmountable ones. Clearly,
any restrictions need to be prescribed by law and need to be necessary in a
democratic society for the pursuance of certain legitimate goals, such as
national security or the prevention of crime. The mass surveillance system as
implemented by Council of Europe member states largely does not meet these
criteria, as it was not prescribed by law and is not proportional. States must
ensure that only necessary surveillance takes place for clearly defined set of
objectives (and enumerated offences) and that threats must have reasonable
basis in fact. The conditions under which collected data can be transferred to
law enforcement (and to the agencies of other states) must be narrowly defined
and subject to oversight. The conditions under which collected data can be
searched and which selectors can be used also need to be clearly defined. When
selectors are attributable to specific persons, heightened accountability
standards need to be met.
The Court has developed
important principles for surveillance in the case of Weber and Saravia v.
Germany, which is still a controlling case, and its decisions in Klass and
Others v. Germany (importance of judicial supervision for surveillance
measures), Bucur and Toma v. Romania (protection of whistle-blowers), Iordachi
and others v. Moldova (narrow definition
of what constitutes a restriction on the grounds of national security) and
El-Masri v. the former Yugoslav Republic of Macedonia (importance of democratic oversight over
security and intelligence services).
Further guidance can be expected in two pending cases directly related
to the legality of mass surveillance: Big Brother Watch and Others v. the
United Kingdom (no. 58170/13) and Bureau of Investigative Journalism and Alice
Ross v. the United Kingdom (no. 62322/14).
Court’s case-law may also develop because of the privacy-friendly jurisprudence
of the Court of Justice of the European Union in the cases Digital Rights
Ireland, Google Spain und Google, Ryneš, Weltimmo and most recently, Schrems.
Already, the Court is
especially mindful of chilling effects on journalism by surveillance (Telegraaf
Media Nederland Landelijke Media B.V. and Others v. the Netherlands).
Journalist’s sources are especially vulnerable both to mass surveillance and to
laws obliging journalists, under penalty, to disclose their personal
information. These laws must meet the principles established by case-law of the
European Court of Human Rights.
The confidentiality of sources, and the
credible protection to whistle-blowers are essential for all media, including
bloggers and other non-traditional media workers, to fulfil their role as
public watchdogs. Too often, security measures are used as pretexts to infringe
upon the right to freedom of expression of journalists and their sources. In
this vein, the Council of Europe three-year Europe-wide programme to support
national mechanisms to protect inter alia, journalists, ombudsman institutions
and press commissioners, as announced by the Secretary General, needs to be
sensitized to the implications of mass surveillance.
Democratic oversight of
security and intelligence services is essential.
As the Council of Europe
Commissioner for Human Rights argues in his Issue Paper the oversight of
security services is “fundamental to ensuring that these institutions both
contribute to the protection of the populations they serve and respect the rule
of law and human rights in undertaking this task.” Implementing the
Commissioner’s recommendation will allow Council of Europe member states to
establish or reestablish a national dialogue on the human rights obligations of
these services. Similar suggestions have been made by the 2015 Venice
Commission report on democratic oversight of security services and signals intelligence
agencies. The role in using democratic oversight to limit human rights abuses
by these agencies needs to be further explored.
International cooperation is essential
International cooperation in
the establishment of a human rights-based framework for surveillance is
essential to reestablish public trust in the Internet, especially in the light
of the de facto impact that US companies and US laws have on European data
subjects. First positive steps, including
the September 2015 agreement by the EU and US to sign a data protection ‘umbrella
agreement’ that covers personal data that is shared between US and EU law
enforcement, must be continued. As a clear sign that human rights of Europeans
matter, the European Parliament, however, has made it clear that its acceptance
of the ‘umbrella agreement’ is premised upon US legislation giving Europeans
data protection rights before US courts.
The 2015 Report by the
Secretary General of the Council of Europe called for a “shared responsibility
for democratic security in Europe”. Illegal mass surveillance by democratically
unaccountable intelligence services flies in the face of this call. Debating
the implications of mass surveillance, and proposing timely remedies, is