Introduction
Formulating a precise definition also constituted
a methodological challenge for FRA. The methods
used by intelligence services have evolved since 2015,
and so has the corresponding terminology. This report
uses the term ‘general surveillance of communications’
to refer to what the 2015 FRA report called ‘signals
intelligence’ (SIGINT), since the latter is no longer fully
accurate in light of the range of methods currently used
by intelligence services.
This report focuses on the work of intelligence services.
It does not address the work of law enforcement
authorities. Nor does it cover the obligations of
commercial entities which are, by law, required to provide
intelligence services with raw data – obligations which
amount to general surveillance of communications – and
are otherwise involved in surveillance programmes.
The private sector’s role in surveillance requires
a separate study. Some commercial entities – especially
telecommunication service providers – produce regular
‘transparency reports’, which outline the requests they
receive from public authorities to access data related to
users of their commercial services.7
“A right is only worth as much as its delimitations and
enforcement mechanisms allow it to be. This is crucial in the
area of governmental surveillance, since we need safeguards
without borders as well as remedies across borders.”
UN, Human Rights Council (2017), Report of the Special Rapporteur Joe
Cannataci, p. 12
Given that the secret monitoring of communications –
as the ECtHR refers to such activity8 – interferes with
the fundamental right to privacy, this report focuses
on analysing the safeguards included in EU Member
States’ legal frameworks, and on the different ways
states safeguard fundamental rights in practice.
Fundamental rights
safeguards
Given the scope of the EP’s request, the report focuses
on privacy and data protection. Other fundamental
rights – such as freedom of expression, freedom of
religion and freedom of association – are also affected
but are not the primary object of the analysis.9
A fundamental right must be properly safeguarded to
be effectively exercised. This report also analyses, as
per the EP’s request, effective remedies that individuals
can pursue to enforce their rights.
The 2015 FRA report referred to existing international
and European standards applicable to surveillance.10
While updating the analysis to take into account
the evolution of United Nations (UN) and European
standards, this report refers to the Compilation of
good practices on legal and institutional frameworks
and measures that ensure respect for human rights
by intelligence agencies while countering terrorism,
including on their oversight (UN Good practices),11 of
which the Human Rights Council took note in 2012.12 This
set of soft law standards remains, to this date, the only
encompassing document in the field at universal level.13
The ECtHR has well-developed case law on Article 8 of
the ECHR (right to respect for private and family life) –
including its procedural aspects14 – and Article 13 of the
9
10
11
12
13
7
8
For an overview of telecommunications, internet and mobile
companies' transparency reports, see Ranking Digital
Rights (2017).
ECtHR, Weber and Saravia v. Germany, No. 54934/00,
29 June 2006, para. 78.
14
See European Parliament (2014), para. T. See also
FRA (2015a), p. 9, United Nations (UN) General
Assembly (GA) (2016); UN Human Rights Council (2017);
UN, Human Rights Council (2016), UN, Human Rights
Council (2017), Report of the Special Rapporteur David
Kaye; UN, Human Rights council (2017), Report of the
Special Rapporteur Joe Cannataci; UN, Human Rights
Council (2017), Report of the Special Rapporteur Ben
Emmerson; the Organization for Security and Co-operation
in Europe (OSCE) (2015); ECtHR, Telegraaf Media Nederland
Landelijke Media B.V. and Others v. the Netherlands,
No. 39315/06, 22 November 2012, para. 88, in which
the ECtHR acknowledges that the surveillance methods
interfered with the applicant’s freedom of expression;
Council of Europe Commissioner for Human Rights (2015);
Raab, C. et al. (2015); Mills, A. and Sarikakis, K. (2017).
FRA (2015a), p. 9.
UN, Human Rights Council (2010), Report of the Special
Rapporteur Martin Scheinin.
UN, Human Rights Council (2012), Resolution on the
protection of human rights and fundamental freedoms while
countering terrorism, 23 March 2012.
See UN, GA (2014a); UN, GA (2016c); UN, Human Rights
Council (2009), Report of the Special Rapporteur Martin
Scheinin; UN, Office of the High Commissioner for Human
Rights (OHCHR) (2014); UN, Human Rights Council (2014),
Report of the Special Rapporteur Ben Emmerson; UN,
Human Rights Committee (2014); UN, Human Rights
Committee (2015); UN, Human Rights Council (2016),
Report of the Special Rapporteur Joe Cannataci; UN, Human
Rights Council (2017), Report of the Special Rapporteur Joe
Cannataci.
ECtHR, M.N. and Others v. San Marino, No. 28005/12,
7 July 2015, para. 83.
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