Surveillance by intelligence services – Volume II: field perspectives and legal update
faced migration pressures across the Mediterranean,
prompting suspension of Schengen area free movement
arrangements; and have been confronted with a rising
tide of cyber-attacks, intensifying concern about
this threat. Several Member States have introduced
legislation to strengthen intelligence gathering in
response to public pressure over these developments,
while expanding the scope of their laws to explicitly
cover more of their intelligence services’ digital activity
and improving oversight and other safeguards against
abuse in light of the 2015 FRA report.
Methodology
The present report builds on the 2015 FRA report by providing a socio-legal analysis. Specifically, it:
- updates the 2015 FRA report’s legal findings; and
- analyses findings from fieldwork interviews with key
actors in the area, such as expert bodies, parliamentary committees, the judiciary, data protection authorities, national human rights institutions, as well
as civil society organisations, academia, and media
representatives.
FRA staff carried out the fieldwork in 2016, conducting
over 70 interviews in seven EU Member States: Belgium,
France, Germany, Italy, the Netherlands, Sweden and the
United Kingdom. The interviews addressed how intelligence legal frameworks are being implemented in practice and whether they comply with fundamental rights. For
a thorough presentation of the methodology, see Annex 1.
The draft report was reviewed by a number of experts. They
include Prof. Nico van Eijk, Director of the Institute for Information Law, University of Amsterdam; Prof. Ian Leigh, Durham Law School , Durham University; Prof. Sir David Omand,
Visiting Professor, Department of War Studies, King’s College, London; and Thorsten Wetzling, Project Director at the
Stiftung Neue Verantwortung.
FRA expresses its gratitude for their valuable contributions. The opinions and conclusions outlined in the report
do not necessarily represent the views of the organisations or individuals who helped to develop the report.
Five of the seven EU Member States – France, Germany,
the Netherlands Sweden and the United Kingdom –
were selected because they have detailed legislation
on general surveillance of communications. They
illustrate fundamental rights safeguards Member States
introduce, particularly the oversight of intelligence
services, when collecting large quantities of data.
Italy and Belgium do not have as detailed legislation
on the general surveillance of communications by civil
intelligence services. However, the structures of their
oversight systems are good examples of two different
approaches to overseeing the surveillance measures
at the services’ disposal. In contrast to the 2015 FRA
report, the present report also covers international
cooperation between intelligence services.
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This FRA project encountered several challenges. The
intelligence field involves sensitive topics, resulting in
secrecy, little knowledge about European intelligence
services’ data collection, and different organisational
and professional cultures among the main actors, such
as intelligence services and oversight bodies, within and
across Member States. Recent reforms of intelligence
legislation in many Member States have brought further
changes to working practices; the comparative tried
to capture the changes up to the time of publication.
Moreover, the number of experts in the area is limited –
in some cases concentrated on a single person (or a few)
who represents a specific function in the system. This
made access to potential respondents more difficult and
made necessary intensive preparatory work in building
up trustful and cooperative relationships in each
Member State and institution. Finally, in some instances,
Member States’ interpretation of the applicability of EU
law and FRA’s mandate posed additional challenges to
accessing national expertise – in particular that of active
intelligence service representatives, who did not take
part in any of the interviews.
Scope of analysis
This report, together with the 2015 FRA report, constitutes
the agency’s response to the EP’s request to study
the impact of ‘surveillance’ on fundamental rights.
However, given the context in which the resolution was
drafted, so-called ‘mass surveillance’ is the main focus
of the parliament’s work. During the data collection
phase for FRA’s first report in 2014, FRA used the
parliament’s definition of ‘mass surveillance’ to delineate
the research’s scope.
The EP resolution refers to: “[F]ar-reaching, complex and
highly technologically advanced systems designed by US and
some Member States’ intelligence services to collect, store
and analyse communication data, including content data,
location data and metadata of all citizens around the world,
on an unprecedented scale and in an indiscriminate and nonsuspicion-based manner.” European Parliament (2014), para. 1
The European Parliament’s definition – highlighted
as an excerpt – encompasses two essential aspects:
first, a reference to technical collection of intelligence,
and second, emphasis on untargeted collection. The
distinction between targeted and untargeted collection
remains disputed when it comes to techniques enabling
general surveillance of communications.
“Even though the inquiry committee’s investigations have neither
found systematic fundamental rights violations nor evidence
of ‘mass surveillance’ or uncontrolled data accumulation or
transmission by the BND, the opposition has continually fuelled
such fears: with incorrect claims on the consequences of the law
and unfounded equating of the BND and the NSA. “
Germany, Federal Parliament (Deutscher Bundestag) (2017b), p. 1316