Back Human rights in Europe should not buckle under mass surveillance

Open Democracy, 12/02/2016

Privacy is a fundamental human right essential for living in dignity and security. This is why it is necessary that European countries pause and get back on the right track.

European countries have made remarkable progress in the last decades to ensure individual freedoms and shield people from undue state interference. The European system of human rights protection is today among the most advanced in the world. However, there is little room for complacency: a number of cracks have appeared in this system and are widening. A number of cracks have appeared in this system and are widening.

One of the biggest comes from counter-terrorism measures considered or enacted across Europe, in particular those which increase mass surveillance. Many of these measures grant more intrusive powers to security services to snoop on our lives and centralise powers in the hands of the executive, thus circumventing judicial safeguards necessary in any democracy rooted in the rule of law.

A number of countries are very active on this front. For example, France is discussing a criminal law reform which would enable the police to use very intrusive surveillance tools in criminal cases. This occurs a few months after it adopted two other highly controversial laws which permit major intrusions, without prior judicial authorisation, into the private lives not only of suspects but also of persons who communicate with them, live or work in the same place or even just happen to be near them.

The Austrian Parliament has adopted a law which allows a new security agency to operate with reduced external control and to collect and store communication data for up to six years.

The Netherlands too is considering a set of draft laws introducing intrusive measures, including dragnet surveillance of all telecommunications, indiscriminate gathering of metadata, decryption and intrusion into the computers of non-suspects. And in the United Kingdom the government intends to increase the authorities’ powers to carry out mass surveillance and bulk collection of intercepted data, despite criticism by civil society and warnings from the UK Independent Reviewer of Terrorism Legislation.

In Finland, the government is even considering changing the constitution to weaken the protection it affords to the privacy of communications so as to ease the adoption of a recently announced bill which intends to grant the military and civil intelligence services the power to conduct electronic mass surveillance with little oversight.

More recently, Poland's president signed a new law which will allow greater digital surveillance of its residents and fewer restrictions to the use police can make of the digital information gathered through electronic surveillance.

These are just a few of the cases that illustrate well the security trend which is spreading all over Europe on the assumption that to guarantee our security we have to renounce some human rights. This assumption is deeply wrong. Both the CIA rendition programme and the massive surveillance unveiled by Edward Snowden should have made us understand that forfeiting human rights to fight terrorism is an ineffective approach.

Moreover, many of the surveillance measures contradict international human rights law. As established by the European Court of Human Rights, in fact, surveillance is – by its very nature  an interference with the right to privacy, as reiterated last December in case of Zakharov against Russia. Although the use of private communication information is essential in combating terrorist violence and threats, states can collect, use and store such information only under exceptional and precise conditions, while offering adequate legal safeguards and independent supervision.

The Court of Justice of the EU also set limits to telecommunication data retention when it invalidated the EU data retention directive for its unnecessary “wide-ranging and particularly serious interference with the fundamental right to respect for private life” and personal data. This judgment echoed the concerns expressed some years earlier by the German Constitutional Court, which ruled against computerised searches by German police of potential terrorist sleepers as this breaches the individual right to self-determination and human dignity.

Nonetheless, decision-makers do not seem to have learnt the lessons of past counter-terrorism operations, nor to pay much attention to these legal arguments. They are pressing ahead with intrusive measures which would be applied without any prior judicial review establishing their legality, proportionality and necessity, thus opening the door to potential abuses and arbitrariness.

The disrespect that a number of governments and parliaments are showing to fundamental principles and legal obligations risks rendering our lives much less private and government activities much less transparent. This situation also adversely affects every person’s ability to participate effectively in public life because the measures under discussion impinge upon our freedom of speech and our right to receive and impart information - including that of public interest.

Indiscriminate, mass surveillance can also impinge on attorney-client privilege and medical confidentiality. You might find yourself thinking twice next time you need to see a lawyer or a doctor, knowing that the security services – and private companies – can know with whom, when and where you communicate. Journalists could lose valuable sources of disclosure of wrongdoing and unlawful conduct in both the public and private spheres.

Minimum safeguards

Compared to the tangible violations perpetrated during the CIA programme of secret detention, surveillance may seem like a small issue. But it is not. Privacy is in fact a fundamental human right which is essential if we wish to live in dignity and security. This is why it is necessary that European countries pause and get back on the right track. They cannot do whatever they want to defend national security, but have to design their counter-terrorism policies based on human rights standards. As a minimum, five parameters should be respected.

First of all, legislation should limit surveillance and the use of data in a way which strictly respects the right to privacy in accordance with European data protection standards, the case law of the European Court of Human Rights and that of the Court of Justice of the EU. These norms oblige states to respect human rights when they gather and store information relating to our private lives and to protect individuals from unlawful surveillance, including when carried out by foreign agencies.

Second, rigorous procedures should be in place to order the examination, use and storage of the data obtained, and those subjected to surveillance should be given a chance to exercise their right to an effective remedy.

Third, security agencies must operate under independent scrutiny and judicial review. Effective oversight is first of all democratic. This requires primarily the involvement of parliaments, which must be granted intrusive overseeing powers and the ability to influence decision-making and operations.

A fourth requirement is the need for prior authorisation of the most intrusive measures, including surveillance, and establishment of a body able to issue legally-binding decisions over complaints by individuals affected by security activities, with access to all intelligence-related information.

Lastly, the judiciary must be involved in the decision-making process of highly intrusive measures and must be free to play its ex post role to ensure accountability.

These are basic parameters that should shape European countries’ counter-terrorism laws and practice. States which have adopted controversial surveillance laws should implement legislation with caution and possibly amend it. Those considering introducing new surveillance legislation should do so within these parameters.

Choosing the future of our democracy

The way we respond today to the challenges posed by terrorist threats will either destroy or strengthen our democracies. We have to make a choice between targeted surveillance measures aimed at tracking potential terrorists on the basis of a reasonable suspicion, and mass surveillance which will make all of us potential suspects.

It is clear to me that only by upholding human rights can Europe really hold true to its democratic values. European states must resist the temptation to fall into the narrative that reducing rights will make us safer. Terrorism is a real threat and it requires an effective response. But adopting surveillance measures that undermine human rights and the rule of law is not the solution.

Terrorists feed on fears. They want us to believe that we must choose between freedom and security. But Europe does not have to make that choice. European democracies must counter the barbarity of terrorism with action which is fully aligned with the rule of law and human rights.

By upholding human rights – including privacy – states are more likely to increase public support for their actions and to weaken that for anti-democratic causes. In the long run, this will make us safer.

This article is published in association with the Criminal Justice Centre at the Department of Law, Queen Mary University of London. The CJC’s members are drawn from both the legal profession and academia, researching the impact of securitisation on human rights. The Centre is one of the coordinating institutions of the European Criminal Academic Network.

Nils Muižnieks

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