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Surveillance laws: EU Court of Justice condemns Sweden and Great Britain

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The European Court of Human Rights condemned the UK and Swedish legislators for their surveillance laws. In both cases, the judges found a violation of the fundamental rights of the European Convention on Human Rights (ECHR). However, a majority of the judges declared it legal for the British to receive data from friendly secret services.

The judges decided that the massive spying of communication data regulated in the Law on the Regulation of Investigatory Powers Act (RIPA) in 2000 violates the fundamental right to family life and privacy (Article 8 ECHR). The law allowed the data streams to be tapped on the submarine cables and became known as the Tempora program through the revelations of Edward Snowden. The judges also condemned the acquisition of data via Internet providers. In addition, RIPA, which was replaced by the Investigatory Powers Act (IPA) in 2016, would curtail the rights of a free press guaranteed in Article 10 of the Convention.

Although preventive wiretapping by the secret services is not fundamentally problematic in terms of fundamental rights, the judges write in the verdict issued after years of disputes. But decisive control measures were missing. The encroachments on fundamental rights required a kind of “end-to-end supervision”, it says in the judgment. A body independent of the executive had to decide in advance how to tap the data about the measure, search terms, the so-called selectors, had to be checked and an effective follow-up had to take place.

The London organization Privacy International, together with civil rights and journalist organizations from three continents, had sued in the British proceedings. One of the plaintiffs is CCC spokeswoman Constanze Kurz.

Privacy International sees itself confirmed by today’s judgment. Above all, the required requirements for the supervision of the secret service activities have been expanded compared to the first judgment of the court, writes the organization. According to Privacy International, the requirement for “end-to-end oversight” in intelligence surveillance is of vital importance, and not just for UK lawmakers. The organization is also suing the successor law IPA.

However, the majority of the judges did not follow the civil rights activists’ request to see the agreements between the Five Eye states (the secret service alliance of the USA, Great Britain, Canada, Australia and New Zealand) and other agreements as a violation of fundamental rights. Here the chamber decided with 12 votes to 5 that there are sufficiently clear rules for the transfer of data from other services. The judges emphasized, among other things, the role of the Interception of Communications Commissioner and the Investigatory Powers Tribual. 12 of the 17 judges were convinced that improper inquiries and the circumvention of their own laws could be avoided in this way.

Five members of the Chamber disagreed in a separate vote and warned that the establishment of rules alone was not sufficient; here, too, clear mechanisms are required to control possible abuse.

The Swedish Center for Council Visas had to wait even longer than the British plaintiffs and their international partners for the verdict in his case. The civil rights organization filed its lawsuit against the Signals Intelligence Act on July 14, 2008 directly in Strasbourg.

In the case of the Swedish Signal Intelligence Act, too, the judges mainly criticized the lack of effective control of the massive encroachments on fundamental rights caused by the surveillance measures. Not only the technology of the supervisors, but also the means of supervision must be adapted to the possibilities arising from new technology, they warned.

In essence, there is a lack of deletion routines for the fished mass data and controls for the transfer of the data by the Swedish secret service FRA to foreign services. The subsequent general control of the surveillance is also contrary to fundamental rights according to the judgment. The Centrum für Rättvisa declared that the ruling, which has been fought for over a decade, is a signal not only for its own legislature, but also for the requirements for intelligence control across Europe. The signal for the German legislature, which has just reorganized the BND control overturned by the Constitutional Court, comes too late, inadequate, as many critics judge.