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

from the so-now-what? dept

Tue, Jan 19th 2016 3:22am — Mike Masnick

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."

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

27 Comments

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That One Guy (profile), 19 Jan 2016 @ 1:52am

Good first step
Now for the even more important(and difficult) second step:

Getting those running and supporting the surveillance programs to care about what is and is not legal.
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Anonymous Coward, 19 Jan 2016 @ 3:33am

It was technically outlawed in the US when they started doing it. That never stopped them though from doing something they knew was morally wrong as well as illegal.

Why on earth would they stop doing it in Europe when it is outlawed when they still have stopped in the US when it was made publicly illegal.
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Anonymous Coward, 19 Jan 2016 @ 3:34am

Re:
edit: have not stopped it in the US.
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Anonymous Coward, 19 Jan 2016 @ 3:44am

Re: Good first step
Oh, they care alright. They just don't care...
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klaus (profile), 19 Jan 2016 @ 4:02am

Definitions
I would expect the definition of intercepting communications to not include wholesale collecting and storing, which will of course be perfectly acceptable. Subsequent analysis of such collections will also be acceptable as long as it's not intercepted in any way.
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Haggie, 19 Jan 2016 @ 4:07am

Fixed that for you
In other words: no gathering of ALL haystacks in order to search for an item to be determined later.
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Gary Clarke, 19 Jan 2016 @ 4:19am

"though they may not be as good at it"
The US learned intelligence techniques from the English.
Noone tops the English when it comes to sneakiness.
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Richard (profile), 19 Jan 2016 @ 4:49am

Re: "though they may not be as good at it"
Noone tops the English when it comes to sneakiness.
We prefer to call it "creative innovation".

As in more Nobel Prizes per head than any othe country with a population > 10 Million.

https://en.wikipedia.org/wiki/List_of_countries_by_Nobel_laureates_per_capita
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Ninja (profile), 19 Jan 2016 @ 4:50am

Re: Good first step
My thoughts exactly. The Constitution hasn't deterred the NSA or even legislators from going completely unconstitutional surveillance and even laws. A much weaker judicial ruling from a supra national court probably has the same weight as pure vacuum to the megalomaniacs in charge.
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Ninja (profile), 19 Jan 2016 @ 4:54am

Re: Re: "though they may not be as good at it"
My surveillance pen0r is bigger than yours! *pouts*

Maybe but we have a bigger tech pen0r! *smirks*

Now, now, kids, don't get too excited or you'll soil yourself like NSA over there.
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Anonymous Coward, 19 Jan 2016 @ 4:55am

very interesting results but i think the problem will remain because 99.9% of governments/security services wont even admit to what surveillance is being carried out or on whom/what countries. ie, the surveillance programs existence themselves will remain secret and even in court will not be admitted to due to 'National Security' issues
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Anonymous Coward, 19 Jan 2016 @ 5:11am

Re: Good first step
Lock them all up, then sort out the rest afterwards.

Problem solved - if those people are punished by jail time, and can't get away without punishment, then perhaps those clowns claiming we have nothing to fear might think.
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jilocasin (profile), 19 Jan 2016 @ 5:27am

You just aren't thinking like a spook yet.
I think you might have forgotten that along with Orwell's 1984, most modern spy... I mean intelligence agencies also have Carroll's works to go by. In this case Through the Looking Glass explains things quite nicely;

"'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.' " [Lewis Carroll, Through the Looking Glass ]

So the answer to the recent conundrum introduced by the European Court is clear, you've highlighted the solution yourself:

... “must clearly identify a specific person … or a single set of premises [emphasis mine]” ...

A country, say Germany, is a single set of premises, problem solved.

What that's too small, well Europe is a single set of premises, still too restrictive, how about Earth is a single set of premises.

I mean if the NSA can claim that an email message is a premises, or that anyone who talks, sends receives, or is mentioned by (out to seven hops) is a single target. Then for European agencies to claim that Europe is a single premises is just too easy. I mean look, it's even a singular noun.
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AJ, 19 Jan 2016 @ 6:10am

Re: Re: "though they may not be as good at it"
Or even; As in 1 CCTV camera per 11 citizens? Not only do you have a bunch of smart people, you know what they are doing every second of the day? Win?

http://www.telegraph.co.uk/technology/10172298/One-surveillance-camera-for-every-11-people-in-Br itain-says-CCTV-survey.html
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Anonymous Coward, 19 Jan 2016 @ 6:16am

Re: Re: Re: "though they may not be as good at it"
I commend this view of mass surveillance as a masturbatory act. Political discussion of it should be had in those terms. It would certainly make it more interesting.
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Anonymous Coward, 19 Jan 2016 @ 6:19am

Re: Re: Re: "though they may not be as good at it"
And STILL "voyeur" has not been replaced by an English word. Damn those French bastards!
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Anonymous Coward, 19 Jan 2016 @ 6:27am

Re: Re: Re: "though they may not be as good at it"
Their goal is eleven cams for every citizen, one in each room.
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Anonymous Coward, 19 Jan 2016 @ 6:35am

That's the sound of government agencies frantically rewriting the dictionary.
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Anonymous Coward, 19 Jan 2016 @ 6:38am

Alternate link?
Is there another link for the story? The CDT blocks anonymous browsing.
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Debra, 19 Jan 2016 @ 8:35am

Human rights and the law
Where the rule of law gives a darn about JUSTICE, humanity thrives.

Now it is time for the world to put one HUMAN right above all the others- that is the RIGHT to life and safety. We can all prioritize that one. If you want your life you can assume others probably want THEIRS.
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Anonymous Coward, 19 Jan 2016 @ 8:36am

Re: Re: "though they may not be as good at it"
We prefer to call it "creative innovation".
While GCHQ may be clever, the NSA doesn't understand irony. NSA wins.
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Anonymous Coward, 19 Jan 2016 @ 9:20am

Re: Re: "though they may not be as good at it"
you don't get it,do you? THEY ALL MERGED after WWII
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Ninja (profile), 19 Jan 2016 @ 9:30am

Re: Re: Re: Re: "though they may not be as good at it"
And make it a compulsive disorder.
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tqk (profile), 19 Jan 2016 @ 9:50am

Meh.
Based on what our rulers have said and allowed so far, I doubt we're going to make any progress on this issue until we have (space) aliens weighing in complaining about SETI; ie. never. Our modern rulers have spent decades now showing how little they care about what any of us want or what's right and proper for democratically elected institutions. They've learned they can just keep this stuff churning through the courts with their litigious mouthpieces re-defining words to mean whatever they want, ad infinitum. Humpty Dumpty, indeed.

All the Darrell Issas and EFFs in the Universe are just spittin' into the wind as long as we keep electing jerks who can't be bothered to care about the electorate once they're elected.
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Ninja (profile), 19 Jan 2016 @ 10:20am

Re: Meh.
The current system was built in a way that people who are good willed are driven away in disgust while power hungry psychopaths get the financial resources to spew honey-sweet words people want to hear then rely on the collective gold fish memory to get reelected ad nauseam even if to different positions. Too much alienation and too much money with 'interests'.
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JoeCool (profile), 19 Jan 2016 @ 10:25am

Re: Re: Re: Re: Re: "though they may not be as good at it"
It really is. If an individual had the same level of obsession in obtaining every bit of info on people, they'd be in prison for "stalking" at a minimum.
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Bill Stewart, 20 Jan 2016 @ 10:47am

"Strictly Necessary"
So the court is trying to claim that "strictly necessary" actually meant "strictly" and "necessary" instead of "might be vaguely useful sometimes"? Nonsense, we can't have courts saying that sort of thing!
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