Surveillance by intelligence services – Volume II: field perspectives and legal update
KEY FINDINGS
A diverse oversight framework
nn Oversight bodies have diverse roles, including overseeing the legality of the intelligence services’ functioning, their efficiency, policies, and their finances.
nn Oversight of surveillance measures is normally undertaken either by the judiciary or an expert body. In
16 Member States, expert bodies are involved in the oversight system, and in 17 Member States, judicial bodies are involved in oversight, generally at the stage of authorising targeted surveillance measures.
nn Fieldwork interviews suggest that oversight by expert bodies contributes to the development and improvement of internal safeguards in intelligence services.
nn In most Member States, parliaments are to some extent involved in all of these roles. In 21 Member States,
one or two specialised parliamentary committees are involved in overseeing the intelligence services.
nn In seven Member States, DPAs have the same powers over intelligence services as over all other data controllers. In 11 Member States, DPAs have no powers over intelligence services. In 10 Member States, their
powers are limited.
Independence, sufficient resources and powers and public scrutiny
nn Independence: all 28 Member States include at least one independent body in the oversight of intelligence
services. Almost all respondents from oversight bodies confirmed that their institutions are independent, impartial, and resistant to any external influence, including by politicians and the intelligence services. However,
some interviewees from civil society and academia questioned the oversight bodies’ actual independence.
nn Resources and powers: oversight bodies in all Member States that have detailed legal provisions on general
surveillance of communications can initiate controls on their own initiative. All Member States also provide
at least one of their oversight bodies with full access to all relevant data and information. The interviewed
experts believe that full access to intelligence information is key to empowering oversight bodies and ensuring effective oversight. However, of the five Member States that have detailed provisions on general surveillance of communications, oversight bodies have some form of binding powers in only three. Representatives
of different oversight bodies stated that lack of technical expertise remains one of the biggest challenges
in oversight. In all seven Member States covered by FRA’s fieldwork, oversight bodies may either include
technical experts or can engage them on an ad hoc basis. The fieldwork findings show that the latter is rarely
done in practice.
nn Public scrutiny: in all the five Member States that have detailed provisions on general surveillance of communications, the oversight bodies issue annual reports. Interviewed experts indicated that enhanced transparency is vital.
nn The respondents view public scrutiny and transparency as being closely linked with the accountability of
oversight bodies. Civil society and academia representatives called for more transparency, deeming the content of issued reports uninformative.
nn Respondents emphasised the importance of cooperation among the different national actors and across the
different purposes of oversight, regardless of its nature (e.g. prescribed by law or informal exchanges). According to the interviewees, cooperation is vital for effective oversight; it strengthens its transparency and
helps overcome possible fragmentation of oversight by contributing to its continuity. The respondents also
expressed a great need for both national and international cooperation among oversight bodies.
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