Surveillance “in accordance with the law”
two pieces of legislation on surveillance powers are
currently in force.115
“RIPA, obscure since its inception, has been patched up so
many times as to make it incomprehensible to all but a tiny
band of initiates. A multitude of alternative powers, some
of them without statutory safeguards, confuse the picture
further. This state of affairs is undemocratic, unnecessary
and – in the long run – intolerable.” Anderson, D. (2015), para. 35
A legislative reform proposal in its very early stages in
Finland aims to introduce a detailed legal framework on
general surveillance of communications, which would
make it the sixth Member State with such legislation
if the proposal is adopted. In its current form, the
proposal grants powers to the Finnish intelligence
services to conduct ‘electronic surveillance of network
communications’ both in Finland and abroad. Such
collection of intelligence can only be carried out to
counter certain outlined activities that threaten national
security and by using specific search criteria, subject
to judicial authorisation. The proposal also creates
a new independent and autonomous authority, the
Intelligence Ombudsman. The Intelligence Ombudsman
would be responsible for overseeing the legality of
the use of intelligence collection methods and the
observance of fundamental rights in surveillance
activities. The Intelligence Ombudsman would have an
extensive right to access information and necessary
documents as well as to conduct inspections on the
premises of the intelligence services. The Intelligence
Ombudsman would also have the competence to order
the suspension or termination of the use of a certain
surveillance technique due to illegality. In such
a situation, the court that authorised the initiation of
the surveillance measure would issue the final decision
on whether the measure could be continued.116
FRA’s analysis further shows that general surveillance
of communications of suspects can take place both
within and outside the Member State. The safeguards
established in the legislation differ for domesticand foreign-focused surveillance measures. When
intelligence services conduct surveillance domestically,
the applicable legal safeguards are enhanced comparing
to those in place for foreign surveillance.
Enhanced safeguards in place
for domestic surveillance
An analysis of the detailed legal frameworks allowing
for domestic general surveillance of communications
reveals that legislators have decided to adopt enhanced
safeguards for this type of surveillance. Among the
115 United Kingdom, Investigatory Powers Act 2016,
Explanatory memorandum.
116 Finland, Ministry of Interior (2017), pp. 301-303.
five Member States having detailed legislation on
general surveillance of communications, three allow for
domestic surveillance: France, Germany and the United
Kingdom. Restrictions on the permitted techniques
for domestic surveillance differ among the countries
based on citizenship criteria (Germany) or territorial
criteria (United Kingdom and France). Additionally, the
intelligence services must obtain warrants approved by
the judiciary or expert bodies.
In Germany, the Basic Law (Grundgesetz) permits, in
select circumstances, restrictions of the inviolability
of the privacy of correspondence, post and
telecommunications: “Restrictions may be ordered only
pursuant to a law. If the restriction serves to protect
the free democratic basic order or the existence or
security of the Federation or of a Land, the law may
provide that the person affected shall not be informed
of the restriction and that recourse to the courts shall
be replaced by a review of the case by agencies and
auxiliary agencies appointed by the legislature.”117
The ‘strategic restrictions’ prescribed by the Gesetz
zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses (G 10 Act) enable the Federal Intelligence
Service (Bundesnachrichtendienst, BND) to wiretap international communications to and from Germany. They are
called ‘strategic’ because of their original military purpose. The BND is authorised to proceed only with the aid
of selectors (Suchbegriffe), which serve and are suitable
for the investigation of one of the threats listed in the
law. The BND sets a list of either format-related selectors (e.g. telephone number or email) or content-related
selectors (e.g. holy war).118 The BND needs to specify the
region and the percentage of the communication channel
it wants to monitor. This percentage cannot exceed 20 %
of the full telecommunication channel capacity.119 In 2015,
for example, the BND established a list of 1,762 selectors
in the context of international terrorism to be applied on
1,132 telecommunication channels (email, voice recognition (Spracherfassung), data sets of metadata (Verkehrsdatensätze), and SMS); of these, only 41 turned out to be
useful from an intelligence point of view.120 The selectors
should not contain any distinguishing features leading
to a targeted telecommunication connection nor affect
the core area of the private sphere. Different restrictions
apply to communications outside Germany, unless they
involve German citizens.121 The list of selectors and the
overall request for surveillance is controlled ex ante by
117
118
119
120
Germany, Basic Law (Grundgezetz), Art. 10 (2).
See Huber, B. (2013), p. 2573.
Germany, G 10 Act, s. 10 (4).
See Germany, Federal Parliament (Deutscher
Bundestag) (2017a), p. 8.
121 Germany, G 10 Act, S. 5 (2). See Löffelmann, M. in
Dietrich, J.-H. and Eiffler, S. (eds) (2017), p. 1236 and following.
Academia has questioned whether this nationality-based
legislation is compatible with the German constitution and
with EU Law. See Schenke, W.-R. et al. (2014), p. 1402.
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