Surveillance by intelligence services – Volume II: field perspectives and legal update
Bolstering oversight with
sufficient technical expertise
Fostering continuity of
oversight
Particularly in light of rapidly evolving technology in
the digital area, technical expertise and capacity among
oversight bodies is crucial. FRA’s fieldwork indicates
that limits on oversight bodies’ IT expertise and their
technical capacity to fully access intelligence data
poses, and will continue to pose, a major challenge.
Interviewed experts stated they sometimes need to
rely on external expertise to complement their own
legal expertise. FRA’s legal research shows that some
EU Member State laws explicitly require oversight
bodies to have technical expertise.
The European Court of Human Rights has held that
effective oversight requires ‘continuous control’ at
every stage of the process. FRA’s research findings
show extremely diverse oversight structures across
EU Member States. When different bodies are involved
in the various steps of oversight – from approving
a surveillance measure to the oversight of its use –
possible gaps or overlaps can result. Such shortcomings
undermine the adequacy of the safeguards. FRA’s
fieldwork highlights that institutional and informal
cooperation between the oversight bodies within
individual Member States is crucial.
FRA opinion 4
EU Member State laws should ensure that oversight
bodies have staff with the required technical
expertise to assess independently the intelligence
services’ often highly technical work.
Ensuring oversight bodies’
openness to public scrutiny
The European Court of Human Rights has underlined
that intelligence services and oversight bodies should
be held accountable for their work. They should be
transparent and effectively inform parliaments and
the public about their activities. FRA’s research shows
that in some Member States, enhanced transparency is
achieved while respecting necessary secrecy. Experts
interviewed during FRA’s fieldwork consider enhanced
transparency to be particularly important. However,
oversight bodies’ approaches to transparency vary
considerably across Member States, ranging from
publishing regular reports to having websites or
using social media.
FRA opinion 5
EU Member States should ensure that oversight
bodies’ mandates include public reporting to
enhance transparency. The oversight bodies’
reports should be in the public domain and contain
detailed overviews of the oversight systems and
related activities (e.g. authorisations of surveillance
measures, on-going control measures, ex-post
investigations and complaints handling).
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FRA opinion 6
EU Member States should ensure that the oversight
bodies’ mandates complement each other, so that
overall they provide continuous control and ensure
proper safeguards. Such complementarity can
be achieved with informal cooperation between
oversight bodies or statutory means.
Enhancing safeguards for
protected professions
The European Court of Human Rights has held that
enhanced safeguards are needed to protect journalistic
sources in the context of surveillance. This principle
similarly applies to other professions which, due to
overarching principles such as parliamentary privileges,
independence of the judiciary and confidentiality in
lawyer-client relations, also require greater protection.
FRA’s research shows that while diverse approaches
exist, several EU Member States have laws stipulating
enhanced authorisation and approval procedures for,
as well as stricter controls on, the processing of data
collected through surveillance of individuals belonging
to protected professions.
FRA opinion 7
EU Member States should establish specific legal
procedures to safeguard the professional privilege
of groups such as members of parliament, members
of the judiciary, lawyers and media professionals.
Implementation of these procedures should be
overseen by an independent body.