On Monday the Council of Europe’s Committee on Legal Affairs and Human Rights published a report on surveillance following worldwide debate on privacy and data protection initiated by the Snowden disclosures. The proposals for legislative reform and human rights protections, drafted by Dutch MP Pieter Omtzigt, are non-binding but influential, furthering the cause of human rights and privacy advocates.
The report is due to be debated by the Parliamentary Assemble of the Council of Europe, which the report states is deeply concerned “about mass surveillance practices disclosed since June 2013 by journalists to whom a former US national security insider, Mr. Edward Snowden, had entrusted a large amount of top secret data establishing the existence of mass surveillance and large-scale intrusion practices hitherto unknown to the general public and even to most political decision-makers.”
Among several observations and proposals we would like to highlight a few.
Surveillance – Undermining Human Rights and Democracy
“The surveillance practices disclosed so far endanger fundamental human rights, including the rights to privacy (Article 8 European Convention on Human Rights (ECHR)), freedom of information and expression (Article 10, ECHR), and the rights to a fair trial (Article 6, ECHR) and freedom of religion (Article 9) (…) These rights are cornerstones of democracy. Their infringement without adequate judicial control also jeoparidzes the rule of law.”
“The [Snowden] disclosures have confirmed the need for the Council of Europe to encourage its members and observer states to reassess their own surveillance programmes, assess loopholes which enable such programmes to target their own citizens by foreign services, and consider possible redress, including through legislative means, international agreements and the promotion of mass encryption.”
“The assembly is also deeply worried about threats to internet security by the practice of certain intelligence agencies, disclosed in the Snowden files, of seeking out systematically, using and even creating “back doors” and other weaknesses in security standards and implementation, which could easily be exploited by terrorists and cyber-terrorists or other criminals.”
“[N]obody and nothing is safe from snooping by our own countries’ and even foreign intelligence services – unless we succeed in generalising the use of secure technologies.”
The Assembly urges the Member and Observer States to:
“[E]nsure that national law allows the collection and analysis of personal data (including so-called metadata) only with the consent of the person concerned or following a court order granted on the basis of reasonable suspicion of the target being involved in criminal activity; unlawful data collection and treatment should be penalised in the same way as the violation of the traditional mail secret ; the creation of “backdoors” or any other techniques to weaken or circumvent security measures or exploit their existing weaknesses should be strictly prohibited; all institutions and businesses holding personal data should be held to apply the most effective security measures available” (underlines ours)
The Assembly also took a stance on whistleblowing, without which, none of this would have surfaced and become substantiated – urging Member and Observer States to “provide for credible, effective protection for whistle-blowers exposing unlawful surveillance activities, including asylum in cases of threatened unfair prosecution in their home country”.
The report further explains that mass surveillance has not been effective in combating terrorism, but rather drawn focus and resources from more targeted surveillance in order to conduct surveillance on such a massive scale “leaving potentially dangerous persons free to act”.
The arguments and findings in the report urge for the rule of law to be respected, as well as democratic oversight and respect for human rights, including the right to privacy, freedom of expression and freedom of information. The scope of mass surveillance is laid out in the report, citing tapping of fibre optic cables, the sharing of bulk data, and the use of illegally obtained data in courts without any recourse to due process. It is a damning verdict on the mass surveillance carried out by the Five Eyes alliance and other states, but also an opportunity for Europe and the rest of the world to take a stance on privacy, human rights and governmental accountability.
The findings and recommendations in the report will be debated in the Parliamentary Assembly of the Council of Europe.
IMMI will utilize the reports findings in drafting and advocating for legislation that protects privacy, data protection, governmental transparency and governmental accountability.
Feature photo by Dominique edte (CC BY-NC 2.0)