2
Surveillance measures
in the digital age
The 2015 FRA report presented the key features of
the surveillance measures that were at the core of
the Snowden revelations. 49 When referring to largescale technical collection of intelligence, it used the
term ‘signals intelligence’. This report instead uses the
term ‘general surveillance of communications’ to refer
to such activity.
Signals intelligence is a traditional term originally used
for the interception and analysis of radio signals – but
is still widely used, even where the signals in question
are transmitted by other means, such as fibre optic
cables. The term is mentioned in some Member
States’ legislation – for example, Sweden, which refers
to ‘signalspaning’ – literally, ‘signal reconnaissance’.
When ‘signals intelligence’ is not used, institutions
and commentators use various terms to refer to these
surveillance techniques. The UN refers to ‘mass digital
surveillance’,50 ‘online surveillance’,51 ‘bulk interception’,52
or ‘bulk telephone metadata collection’.53 The UN
Special Rapporteur on privacy uses the terms ‘mass
surveillance’ and ‘bulk hacking’ when discussing, for
example, the powers included in the United Kingdom’s
Investigatory Powers Act.54 The Special Rapporteur also
refers to ‘bulk processing’.55 The Committee of Ministers
of the Council of Europe refers to ‘broad surveillance
of citizens’;56 the specialised ministers of the Council of
Europe refer to ‘the question of gathering vast amounts
of electronic communications data on individuals by
49 FRA (2015a), p. 15-16.
50 UN, Human Rights Council (2017), Report of the Special
Rapporteur Ben Emmerson, p. 10.
51 Ibid.
52 Ibid.
53 Ibid. p. 11.
54 UN, GA (2016a), Report of the Special Rapporteur Joe
Cannataci, paras. 28-29.
55 Ibid. para. 29.
56 Council of Europe, Committee of Ministers (2013).
security agencies’;57 and the Parliamentary Assembly
of the Council of Europe entitled its report ‘mass
surveillance’.58 The European Parliament refers to ‘mass
surveillance’ in its 2014 resolution on the topic,59 and
Bigo et al. in their commissioned report for the European
Parliament refer to large-scale surveillance and ‘cybermass surveillance’.60 The ECtHR refers to ‘exploratory
or general surveillance’61 and ‘strategic monitoring’ to
identify risks (as opposed to individual monitoring of
specific persons, with suspicion).62
The Venice Commission uses the concept of
‘strategic surveillance’ to emphasise that “signals
intelligence can now involve monitoring of ‘ordinary
communications’ ”. 63 In doing so, it builds on the
concept used in German law – strategic restriction
(strategische Beschränkung) – adding that ‘strategic
surveillance’ also includes “signals intelligence to collect
information on identified individuals and groups”,64
therefore covering initially untargeted surveillance that
becomes more targeted. The word ‘strategic’ denotes
a process involving a selection by way of automated
tools. The data go through selectors or discriminants
applied by algorithms. This touches on the second key
aspect of the European Parliament’s definition in its
2014 resolution, which requires an explanation of the
57
Council of Europe, Conference of Ministers responsible for
Media and Information Society (2013), para. 13 (v).
58 Council of Europe (2016).
59 European Parliament (2014), Resolution on the US NSA
surveillance programme, surveillance bodies in various
Member States and their impact on EU citizens’ fundamental
rights and on transatlantic cooperation in Justice and Home
Affairs, P7_TA(2014) 0230, Strasbourg, 12 March 2014.
60 Bigo, D. et al. (2013), p. 14.
61 ECtHR, Klass and others v. Germany, No. 5029/71,
6 September 1978, para. 51.
62 ECtHR, Weber and Saravia v. Germany, No. 54934/00,
29 June 2006, para. 4.
63 Council of Europe (2016), p. 61.
64 Ibid. p. 61, fn. 4.
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