SZABÓ AND VISSY v. HUNGARY JUDGMENT
37
communications susceptible to containing indications of impending
incidents. The techniques applied in such monitoring operations have
demonstrated a remarkable progress in recent years and reached a level of
sophistication which is hardly conceivable for the average citizen (see the
CDT’s submissions on this point in paragraphs 49-50 above), especially
when automated and systemic data collection is technically possible and
becomes widespread. In the face of this progress the Court must scrutinise
the question as to whether the development of surveillance methods
resulting in masses of data collected has been accompanied by a
simultaneous development of legal safeguards securing respect for citizens’
Convention rights. These data often compile further information about the
conditions in which the primary elements intercepted by the authorities were
created, such as the time and place of, as well as the equipment used for, the
creation of computer files, digital photographs, electronic and text messages
and the like. Indeed, it would defy the purpose of government efforts to
keep terrorism at bay, thus restoring citizens’ trust in their abilities to
maintain public security, if the terrorist threat were paradoxically substituted
for by a perceived threat of unfettered executive power intruding into
citizens’ private spheres by virtue of uncontrolled yet far-reaching
surveillance techniques and prerogatives. In this context the Court also
refers to the observations made by the Court of Justice of the European
Union and, especially, the United Nations Special Rapporteur, emphasising
the importance of adequate legislation of sufficient safeguards in the face of
the authorities’ enhanced technical possibilities to intercept private
information (see paragraphs 23 and 24 above).
69. The Court recalls that in Kennedy, the impugned legislation did not
allow for “indiscriminate capturing of vast amounts of communications”
(see Kennedy, cited above, § 160) which was one of the elements enabling it
not to find a violation of Article 8. However, in the present case, the Court
considers that, in the absence of specific rules to that effect or any
submissions to the contrary, it cannot be ruled out that the broad-based
provisions of the National Security Act can be taken to enable so-called
strategic, large-scale interception, which is a matter of serious concern.
70. The Court would add that the possibility occurring on the side of
Governments to acquire a detailed profile (see the CDT’s submissions on
this in paragraph 49 above) of the most intimate aspects of citizens’ lives
may result in particularly invasive interferences with private life. Reference
is made in this context to the views expressed by the Court of Justice of the
European Union and the European Parliament (see paragraphs 23 and
25 above). This threat to privacy must be subjected to very close scrutiny
both on the domestic level and under the Convention. The guarantees
required by the extant Convention case-law on interceptions need to be
enhanced so as to address the issue of such surveillance practices. However,
it is not warranted to embark on this matter in the present case, since the