In A Surprising Decision, European Court Of Human Rights Says Sweden's Mass Surveillance Is Fine

from the but-top-EU-court's-views-may-matter-more dept

In the wake of Snowden's revelations of the scale of mass surveillance around the world, various cases have been brought before the courts in an attempt to stop or at least limit this activity. One involved Sweden's use of bulk interception for gathering foreign intelligence. A public interest law firm filed a complaint at the European Court of Human Rights (ECtHR). It alleged that governmental spying breached its privacy rights under Article 8 of the European Convention on Human Rights (pdf). The complaint said that the system of secret surveillance potentially affected all users of the Internet and mobile phones in Sweden, and pointed out that there was no system for citizens to use if they suspected their communications had been intercepted. The ECtHR has just ruled that "although there were some areas for improvement, overall the Swedish system of bulk interception provided adequate and sufficient guarantees against arbitrariness and the risk of abuse":

In particular, the scope of the signals intelligence measures and the treatment of intercepted data were clearly defined in law, permission for interception had to be by court order after a detailed examination, it was only permitted for communications crossing the Swedish border and not within Sweden itself, it could only be for a maximum of six months, and any renewal required a review. Furthermore, there were several independent bodies, in particular an inspectorate, tasked with the supervision and review of the system. Lastly, the lack of notification of surveillance measures was compensated for by the fact that there were a number of complaint mechanisms available, in particular via the inspectorate, the Parliamentary Ombudsmen and the Chancellor of Justice.

When coming to that conclusion, the Court took into account the State's discretionary powers in protecting national security, especially given the present-day threats of global terrorism and serious cross-border crime.

One expert in this area, TJ McIntyre, expressed on Twitter his disappointment with the judgment:

It might have been too much to expect bulk intercept ruled out in principle, but it is surprising to see a retreat from existing standards on safeguards.

McIntyre played a leading role in one of the key cases brought against mass surveillance, by Digital Rights Ireland in 2014. It resulted in the EU's top court, the Court of Justice of the European Union (CJEU), ruling the EU's Data Retention Directive was "invalid". As McIntyre notes, the detailed ECtHR analysis mentions the CJEU decision, but not the more recent ruling by the latter that struck down the "Safe Harbor" framework because of mass surveillance by the NSA.

The judgment significantly waters down safeguards previously developed by the ECtHR in relation to notification and possibility of a remedy against unlawful surveillance.

For example, McIntyre points out the ECtHR accepted that it is necessary for the Swedish signals intelligence service to store raw material before it can be manually processed:

Remarkably weak controls on storage and downstream use of intercept material were accepted by the ECtHR -- in particular, it was satisfied with retention of bulk intercept "raw material" for one year!

Something of a setback in terms of limiting mass surveillance, the latest judgment goes against the general trend of decisions by the arguably more important CJEU court. In 2014 the latter effectively ruled that its own decisions should take precedence over those of the ECtHR if they came into conflict. That is now more likely, given the CJEU's hardening position against mass surveillance, and the diverging judgment from the ECtHR, which shows some softening.

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Filed Under: european convention on human rights, european court of human rights, human rights, mass surveillance, sweden

Pirate Bay Founder Takes Fight To EU, Argues Swedish Censorship Violates Human Rights

from the legal-challenges dept

While The Pirate Bay has lost all of its appeals in Sweden, one of the founders, Fredrik Neij, is apparently going to take his case to the European Courts, arguing that shutting down a site like The Pirate Bay is a violation of Article 10 of the European Convention on Human Rights. As Neij's lawyers point out, since TPB does not host or transmit any material covered by copyright, shutting it down (or fining and jailing Neij based on its usage) rejects his rights "to receive and impart information."

While I understand where he's coming from, I do worry that courts to date have been particularly bad at comprehending the fact that The Pirate Bay neither hosts nor transmits any unauthorized information. While they are seeking to make analogies, the courts seem to zero in on the way many people use the tool, rather than separating the tool from the usage.

The lawyer also notes that since the torrent file information itself wasn’t illegal, the function should be covered by Article 10. He adds that he will also ask for further scrutiny as to whether it was indeed correct to hold Fredrik Neij responsible for what other people did when they used The Pirate Bay.

“In our opinion, it is like being held guilty in court because someone delivered a letter with illegal content. Another, and perhaps even more relevant analogy, would be if the founders of a buying and selling site were found guilty after someone sold a stolen bicycle after it was advertised on the site,” Nilsson explains.

Basically, it sounds like they're going with a typical secondary liability protection argument, which makes sense in theory. Once again, however, the courts have been pretty resistant to recognizing such an argument, especially when so much of the usage is for infringing purposes and (especially) when the operators of the site were quick to mock those who challenged how much of the usage was infringing. The courts just don't have very much sympathy there. Thus, I'm not confident this will turn out all that well -- and I actually worry that the end result may be a precedent that cuts of secondary liability protections for other sites as well.

Filed Under: european convention on human rights, european union, fredrik neij
Companies: the pirate bay