Surveillance by intelligence services – Volume II: field perspectives and legal update
KEY FINDINGS
Intelligence services’ legal frameworks
nn All EU Member States regulate by law the organisation of their intelligence services to comply with rule of
law and human rights standards.
nn The organisation of intelligence services varies significantly in the EU Member States. In some, two intelligence services carry out the work, while in others, five, six or more bodies may apply surveillance measures.
nn International human rights standards require that intelligence services’ mandate and powers be defined in
legislation. The law has to be clear, foreseeable and accessible. Interviewees raised concerns relating to the
complexity, as well as the lack of clarity and comprehensiveness, of some legal frameworks.
nn The mere existence of a law allowing for surveillance measures – either targeted (with prior suspicion) or
untargeted (without prior suspicion) – constitutes an interference with the fundamental rights to privacy and
data protection.
nn Under EU data protection law, the collection of data by intelligence services in itself constitutes an interference.
nn Almost all EU Member States have a legal framework on targeted surveillance.
nn France, Germany, the Netherlands, Sweden and the United Kingdom have detailed legislation on general
surveillance of communications.
nn Legal safeguards are more extensive for domestic surveillance than for foreign-focused surveillance.
nn France, Germany, the Netherlands and the United Kingdom have reformed their legislation extensively since
2015. Several other Member States have started significant reforms. These aim, among others, to adapt to
new technological developments and respond to new threats. Reforms increased transparency on surveillance powers granted to intelligence services. Interviewed experts acknowledged that legal reforms have
brought improvements. However, interviewees believe that lack of clarity – and hence the need for quality
legal rules governing the work of intelligence services – remains an issue.
nn The concept of national security is not harmoniously defined across EU Member States. The scope of national
security is rarely defined, and sometimes other, similar terms are used. Interviewed experts confirmed the
need for clearer definitions of – among other terms – national security, including at EU level.
International cooperation frameworks
nn Almost all EU Member States’ laws allow for international intelligence cooperation. Only few detail in their
legislation the procedures intelligence services must follow to establish international cooperation.
nn Before establishing cooperation agreements, intelligence services from eight Member States have to follow
confidential internal rules. A small number of EU Member States’ laws prescribe a review of international
cooperation agreements by independent bodies.
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