Surveillance by intelligence services – Volume II: field perspectives and legal update
In 2013, the German branch of Reporters without Borders (RWB) brought an action against BND’s strategic
surveillance of international communications. RWB argued that both the interception of communications itself and the collection, storage and analysis of metadata
violated their privacy. In 2016, the Federal Administrative Court decided that there was no privacy violation
because, even if the NGO’s communications had been
under surveillance, BND deleted them immediately
and such act could not be traced. In 2017, the case was
brought before the Federal Constitutional Court challenging, among others, the lack of remedies in case of
strategic surveillance.
Germany, Federal Administrative Court (Bundesverwaltungsgericht),
BVerwG 6 A 7.14, 15 June 2016
During fieldwork interviews, all respondents were
asked to describe cooperation efforts between their
institutions and the other main actors in their country,
including civil society organisations. The findings show
that cooperation is least developed with civil society
organisations (in comparison with other institutional
bodies) and mainly takes the form of ad hoc exchanges
or consultations. Few entities within the Member
States researched have established contacts with civil
society organisations or take advantage of certain
networks operating domestically – such as the Belgian
Human Rights Platform, established in January 2015,
which brings together all institutions with human
rights protection mandates, including the Standing
Committee I. In Croatia, civil society participates in
the Council for Civilian Oversight of Security and
Intelligence Services, which exercises part of the
oversight of the operations of intelligence services and
their legality.266 However, in the remaining Member
States, many respondents suggested there was room
for future developments and closer cooperation. The
work of civil society is most appreciated by national
human rights institutions, ombuds institutions, lawyers
and academics for their professionalism, strategic
litigation, provision of amicus curiae briefs, opinions
on draft laws, participation in public consultations
and provision of legal advice for individuals who seek
remedies in case of violations.
266 Croatia, Act on the Security Intelligence System of
the Republic of Croatia 2006 (Zakon o SigurnosnoObavještajnom Sustavu Republike Hrvatske 2006), Art. 110.
70
The media unquestionably play a substantial role
in generating or steering public debate during legal
reforms. They also played a crucial role in publishing
some of the US National Security Agency material
exposed by Edward Snowden, informing the broader
public about the existence and some of the functioning
programmes of general surveillance of communications.
Interviewed oversight body representatives in Italy,
the Netherlands and Sweden noted that some of their
investigations were triggered by media attention to
certain issues. At the same time, in relation to trustbased cooperation, expert body representatives
tended to cite reports or leaks of information, e.g.
to the media, as undermining their relationship with
the intelligence services.
As further analysed in Section 10.3, media professionals
might be less willing to conduct in-depth investigative
reporting on intelligence services if the confidentiality
of their sources is not assured by enhanced
safeguards against surveillance.
ECtHR case law: whistleblowers
“[A] civil servant, in the course of his work, may become
aware of in-house information, including secret information, whose divulgation or publication corresponds to
a strong public interest. The Court thus considers that the
signalling by a civil servant or an employee in the public
sector of illegal conduct or wrongdoing in the workplace
should, in certain circumstances, enjoy protection. […] In
the light of the duty of discretion referred to above, disclosure should be made in the first place to the person’s
superior or other competent authority or body. It is only
where this is clearly impracticable that the information
could, as a last resort, be disclosed to the public […].”
ECtHR, Guja v. Moldova [GC], No. 14277/04, 12 February 2008, paras. 72-73
The 2015 FRA report highlighted the importance of
whistleblowers.267 Staff within intelligence services may
want to raise concerns about the legality of activities
witnessed within their agency. This can be achieved
by means of internal controls such as ethics commissioners or staff counsellors, to whom staff can turn in
confidence if they have anxieties relating to the work
of their service; and through whistleblower provisions,
which allow staff to feel secure when reporting wrongdoing. Ethics counsellors, journalists and whistleblowers
thus can also play an essential ‘intermediary’ role in
alerting executive and oversight bodies to issues that
require investigation. The Snowden revelations provide
a good example of this since they led to both national
and international litigation.268
267 FRA (2015a), pp. 33 and 68.
268 See also the concept of ‘insider’ complaints in
Forcese, C. (2012), p. 182. See also PACE, Committee on Legal
Affairs and Human Rights (2015a).