Interference with the right to respect for private life
the EU-Canada PNR Agreement 85 – that there is no
interference until intelligence services start using
collected data. The CJEU reaffirmed the position that
communication of personal data to a third party, such
as a public authority, constitutes an interference with
the right to respect for private life, regardless of the
subsequent use of the information communicated.86
Figure 4 shows the difference in the perception of the
notion of an interference in the EU and US contexts.
In the United States, an interference is considered to
occur when intelligence services use the data, and not
when they collect them.87 In practice, this means that an
interference with the right to private life is established
when intelligence services access and analyse the
previously collected data.
The differences in the understanding of the notion of
an interference are important when European courts
assess surveillance measures. According to both ECHR
and EU law, an interference with the right to private
life is established with the existence of legislation
allowing for surveillance measures, and this opens the
way to a control on the merits of the case. Therefore,
European courts consider the mere collection of data
by intelligence services to constitute an interference.
Figure 4: Different understandings of ‘interference’ (EU and US)
EU context
Interference
(LEGISLATION
ALLOWING FOR)
INTERCEPTION
FILTERING AND
STORAGE
ACCESS AND
ANALYSIS
Interference
US context
Source: FRA, 2017
85
CJEU, Opinion 1/15 on the Draft Agreement between Canada
and the European Union on the transfer and processing
of Passenger Name Record data, Opinion of the Advocate
General, 8 September 2016, paras. 171-172.
86 CJEU, Opinion 1/15 on the Draft Agreement between Canada
and the European Union on the transfer and processing of
Passenger Name Record data, Opinion of the Court (Grand
Chamber), 26 July 2017, paras. 124-125.
87 United States, National Research Council (2015), p. 36.
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