Surveillance “in accordance with the law”
representatives of the public administration work with
the direct implementation of the laws, which equips
them with a better understanding, the ability to provide
more explanations, and examples of everyday practices.
Also, they work in a specific institutional context and
have built up working relationships or cooperation
with others in the field. This also helps develop mutual
trust with the actors in the field, including intelligence
services. They are therefore in a better position to
ensure compliance with standards and implementation
of best practices.
“But if we put it this way, an ordinary well-educated
non-lawyer looking at the legislation would not be able
to understand from this that there is such a broad signal
intelligence capability and they certainly wouldn’t without
the benefit of detailed legal advice be able to understand the
ramification of what is proposed.” (Lawyer)
Respondents nearly unanimously deemed the current
legal framework complex – with regard to a variety
of characteristics. Some noted that it is difficult to
legislate simply in the area of intelligence collection. As
a result, legislation is kept ‘general’, ‘vague’ or ‘obscure’.
Some referred to the complexity in terms of recent
developments, recent changes (legislative reforms) or
the need for changes in the area.
Respondents mentioned that a number of different
pieces of legislation regulate the field and oversight, and
that legislation sometimes contains cross-references to
other legislation or to codes of conduct. As one lawyer
put it: ‘in terms of different pieces of legislation and
institutions, it is quite a jungle out there’. Several
respondents mentioned the length of the legislation,
particularly the most recent legislation.
Others referred to the need for better definitions
of concepts (e.g. related to ‘national security’), and
fewer vague terms (‘it is full of very vague terms,
[there is] very little in terms of thresholds’) and other
inconsistencies or imprecise areas. According to one
lawyer, the vague wording leaves a lot of provisions
open to interpretation – which is linked to the tendency
to ‘expand the scope of’ the laws.
Adding to the complexity is the lack of cooperation
between oversight bodies and inconsistencies across
powers for the number of actors involved in the area.
For example, some Data Protection Authorities (DPAs)
mentioned ongoing discussions on how to reduce the
complexity of legislation and suggested that DPAs
could shoulder more work, if the necessary powers
were attributed to them. According to respondents,
the legal framework is also complex because the
laws are incomplete (e.g. they do not address
technical arrangements for oversight, although they
define surveillance techniques).
“[The law] has failed numerous tests in terms of clarity and
foreseeability.” (Expert body)
The different actors were asked about the clarity of their
respective national legal frameworks in terms of the
effectiveness of the day-to-day oversight of the work
of intelligence services. In relation to the content of
the legislation, opinions diverge. More respondents felt
that the legal framework lacks clarity than considered
it sufficiently clear.
“The main aspects that characterise the law’s lack of clarity
are the imprecision with which the law on the intelligence
services deals with a certain number of issues and the
excessively vast scale of the surveillance.” (Lawyer)
Respondents who stated that the legal framework
lacks clarity noted the vagueness of the laws, e.g.
broad definitions of terms, mandates of institutions,
and many different ambitions. They considered the laws
to be incomplete and in certain cases non-compliant
with European case law standards. A lack of consistency
and transparency was also mentioned. The definitions
provided by the legal text of both the powers and
mandate of the intelligence services were considered
insufficiently clear. Some believe the [current] lack of
clarity is intentional – to ensure the greatest possible
freedom to manoeuvre. These respondents called
for an improvement of current legal frameworks.
Lawyers, civil society representatives and academics
tended to be most critical, and more often stated that
legislation lacks clarity.
“You read the text and you do not really understand what
it means. You read it again, you get a bit of a glimpse, but
the cascades of cross-references to other laws hinder your
understanding. The terms are vague.” (Civil society organisation)
Nonetheless, a significant share of respondents
considered the legal framework to be clear. They tended
to be representatives of parliamentary committees,
expert bodies, and executive control. They noted that
certain parts or aspects of the legislation are clearer than
others, e.g. no clear division of competences between
specific bodies, or some forms of surveillance under the
legislation being slightly clearer than others. Institutions
with specific mandates tended to find the legislation
clear in terms of their own work. For example, data
protection authorities, ombuds institutions and expert
bodies suggested that the legislation is clear as far
as it is related to their specific – and, in most cases,
limited – function.
“That legal framework is clear for those who work for the
[ombuds institution]. The framework is perhaps less clear
to members of the public. There is frequent consultation
between institutions to determine which institution is
competent to deal with a particular matter.” (Ombuds institution)
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