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EU Court Rules Mass Surveillance Unlawful

  • January 30, 2016
  • Clayton Rice, K.C.

On January 1, 2011, the government of Hungary established the Anti-Terrorism Task Force that is active in gathering secret intelligence. Under the National Security Act, the governing legislation, the task force engaged in secret house searches; surveillance with recording; opening of letters and parcels; and, recording of electronic and computerized communications. Ministerial approval was not subject to judicial review, the law did not proscribe the circumstances under which surveillance could be ordered and there was no direction for deletion of seized data and information.

On June 15, 2012, Mate Szabo and Beatrix Vissy, Hungarian nationals living in Budapest, filed a constitutional complaint arguing that the sweeping prerogatives of secret intelligence gathering for national security purposes breached their right to privacy. On November 18, 2013, the Hungarian Constitutional Court dismissed the majority of their complaints. Relying on Article 8 of the European Convention on Human Rights they then brought an application in the European Court of Human Rights arguing that they could be subjected to disproportionately intrusive measures under a legal regime that was prone to abuse for want of judicial oversight. On June 12, 2014, the application was communicated to the government.

On January 12, 2016, the court released its judgment reported as Szabo and Vissy v Hungary (Application No 37138/14) finding that there had been a violation of the applicants’ right to respect for private and family life. It is an important ruling that has slipped a little under the radar although it received some attention online and in the media in the United States and Britain. (See: Mike Masnick. European Court of Human Rights May Have Just Outlawed Mass Surveillance Without Most People Realizing It. TechDirt. January 19, 2016; and, Kieren McCarthy. European human rights court rules mass surveillance illegal. The Register. January 20, 2016)

In finding that the Hungarian law (Act no XXXIV 1994 s 7/E) breached the right to privacy, the court summarized its conclusions, at para. 89: “…[T]he Court is not convinced that the Hungarian legislation on ‘section 7/E(3) surveillance’ provides safeguards sufficiently precise, effective and comprehensive on the ordering, execution and potential redressing of such measures. Given that the scope of the measures could include virtually anyone, that the ordering is taking place entirely within the realm of the executive and without an assessment of strict necessity, that new technologies enable the Government to intercept masses of data easily concerning even persons outside the original range of operation, and given the absence of any effective remedial measures, let alone judicial ones, the Court concludes that there has been a violation of Article 8 of the Convention.”

What, then, are the takeaways here?

First. the court reiterated that any measure of secret surveillance which did not correspond to the criteria of being strictly necessary for the safeguarding of democratic institutions or for the obtaining of vital intelligence in an individual operation would be prone to abuse by authorities with cutting edge technologies at their disposal. The court thus affirmed the ruling in Digital Rights Ireland v Minister for Communications & Others, (cases C-293/12 and C-594/12, 8 April 2014) where the Court of Justice of the European Union held, at para. 52: “So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court’s settled case-law…that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary.”

Second, the court continued to take an expansive view of what is called standing in Canadian and American law, at para. 33: “…[I]n recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them, an individual may claim to be a victim on account of the mere existence of legislation permitting secret surveillance, even if he cannot point to any concrete measures specifically affecting him.” The court thus affirmed the approach taken in Klass and Others v Germany, 6 September 1978, s 33, Series A no 28, at para. 34: “If this were not so, the efficiency of the Convention’s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious. The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him.”

Third. the court affirmed, at para. 36, the harmonized approach adopted in Zakharov v Russia ([GC], no 47143/06, ss 170-2, 4 December 2015) according to which: “…[F]irstly the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his or her communications intercepted; and secondly the Court will also take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies.”

Fourth, the court further affirmed, at para. 56, the minimum safeguards in the context of wiretapping that should be set out in law in order to avoid abuses of power: (a) the nature of offences which may give rise to an interception order; (b) the definition of the categories of people liable to have their telephones wiretapped; (c) a limit on the duration of telephone wiretapping; (d) the procedure to be followed for examining, using and storing the data obtained; (e) the precautions to be taken when communicating the data to other parties; and, (f) the circumstances in which recordings may or must be erased or destroyed. These safeguards are analogous to some of the requirements in Canadian and American wiretap law. (See: Criminal Code of Canada, s 186(4); and, Title III, 18 U.S.C. s 2518)

Then, at para. 57, the court delivered the punch line: “When balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse.”

The underlying concern for democracy and democratic institutions was reflected in the 2013 Report of the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression that the court cited, at para. 24, where Frank La Rue stated: “…[W]hereas fundamental rights, notably freedom of expression, of the press, of thought, of conscience, of religion and of association, private life, data protection, as well as the right to an effective remedy, the presumption of innocence and the right to a fair trial and non-discrimination, as enshrined in the Charter of Fundamental Rights of the European Union and in the European Convention on Human Rights, are cornerstones of democracy; whereas mass surveillance of human beings is incompatible with these cornerstones;…”. [Emphasis mine]

Where does that leave us? The critical aspect of the ruling in Szabo and Vissy may lie in the court’s development of the strict necessity test that clearly embodies two aspects. Any measure of secret surveillance must be strictly necessary for (a) the safeguarding of democratic institutions or (b) the obtaining of vital intelligence in an individual operation. As Mr. Masnick said in his post on TechDirt noted above: “In other words: no gathering of an enormous indiscriminate haystack in order to search for a needle.”

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