C Explanatory memorandum by Sir Roger
Gale, rapporteur for opinion
1 Introduction
1. On 30 September 2013, as a follow-up to the current
affairs debate on “State interference with privacy on the Internet”
of 27 June 2013, the committee had held an exchange of views with
Lawrence Early, Jurisconsult of the European Court of Human Rights,
Dorothee Belz, Vice-President, Legal and Corporate Affairs, Microsoft
Corporation Europe, and Duncan Campbell, Journalist, Brighton, United
Kingdom.
Note Having heard Mr Campbell in Paris
on 11 March 2014 again in the framework of the preparation of the
report on “Improving user protection and security in cyberspace”
by Axel Fischer (Germany, EPP/CD), the committee had decided to
ask the Assembly’s Bureau to be seized for opinion on the report
on mass surveillance.
2 Mass surveillance
2. Mass surveillance is not a recent phenomenon. Starting
from direct surveillance of persons at a massive level through huge
numbers of neighbourhood wardens (“Blockwart”) under the Nazi dictatorship
in Germany, communist dictatorship developed mass surveillance further
through technological progress, leading to large-scale telephone
tapping and the storage of conventional and later electronic data
by the notorious KGB of the Soviet Union, especially in the satellite
“brother countries” under its control. Such practice has caused
a strong popular distrust in authorities of a State spying on its
people, as described by George Orwell in his novel Nineteen Eighty-Four as well as
by the citation of Alexandr Solzhenitsyn describing the situation
in the USSR by the words “Our freedom is built on what others do
not know of our existences”, which opens the report on mass surveillance.
3. While non-democratic States used mass surveillance in order
to control and stifle political opposition, surveillance technologies
have also been used by democratic States in order to combat large-scale
crime and terrorism. In the wake of the terrorist attacks by the
“Red Army Fraction” in West Germany in the 1970s, the European Court
of Human Rights held in
Klass and others
v. Germany (Application No. 5029/71) that “the existence
of some legislation granting powers of secret surveillance over
the mail, post and telecommunications is, under exceptional conditions,
necessary in a democratic society in the interests of national security
and/or for the prevention of disorder or crime. … The Court, being
aware of the danger such a law poses of undermining or even destroying
democracy on the ground of defending it, affirms that the Contracting
States may not, in the name of the struggle against espionage and
terrorism, adopt whatever measures they deem appropriate. The Court
must be satisfied that, whatever system of surveillance is adopted,
there exist adequate and effective guarantees against abuse. This
assessment has only a relative character: it depends on all the
circumstances of the case, such as the nature, scope and duration
of the possible measures, the grounds required for ordering such
measures, the authorities competent to permit, carry out and supervise
such measures, and the kind of remedy provided by the national law”.
Note
4. The growth in mobile telephony since the end of the 20th century
has enabled secret services to intercept such telephone communications
widely. The practice by the United States and its allies was the
object of the report by the European Parliament of 11 July 2001
“on the existence of a global system for the interception of private
and commercial communications (ECHELON interception system)”.
Note At the same time, the European Court
of Human Rights developed further its jurisprudence in this field:
“In its case law on secret measures of surveillance, the Court has
developed the following minimum safeguards that should be set out in
statute law in order to avoid abuses of power: the nature of the
offences which may give rise to an interception order; a definition
of the categories of people liable to have their telephones tapped;
a limit on the duration of telephone tapping; the procedure to be
followed for examining, using and storing the data obtained; the
precautions to be taken when communicating the data to other parties;
and the circumstances in which recordings may or must be erased
or the tapes destroyed.”
Note
5. Through the rapid growth of Internet communication and the
technological simplicity in intercepting and monitoring such communication,
mass surveillance has entered a new and so far unknown scale. While
the manner of the disclosures made by Edward Snowden through a British
national newspaper and the consequent risk posed to the lives of
those engaged in counter-terrorism is highly questionable, those
disclosures have nevertheless also shed light on the practice of
national security services of the United States and countries co-operating
with the United States. It can be assumed, however, that third countries
also possess the technological equipment and skills in order to
pursue mass surveillance of Internet and mobile communications of
their citizens and foreigners abroad. In addition, mass surveillance
or profiling of Internet users is also used by multinational commercial
companies specialising in targeted advertising. The latter phenomenon
has been addressed by the Committee of Ministers in its Recommendation
CM/Rec(2010)13 on the protection of individuals with regard to automatic
processing of personal data in the context of profiling and its Recommendation
CM/Rec(2012)3 on the protection of human rights with regard to search
engines.
6. Mass surveillance measures have to be assessed with proper
regard to their purpose. While private or commercial mass surveillance
is generally not covered by the exceptions to the right to protection
of private life under Article 8 of the European Convention on Human
Rights (ETS No. 5), mass surveillance by law-enforcement authorities
must respect the safeguards established by the European Court of
Human Rights.
Note National security is specifically mentioned
in Article 8 of the Convention and obviously allows for restrictions
of the right to private life, but it is essential that national
security is carefully defined by domestic law and that such measures
are not used by governments in order to persecute democratic political
opposition.
Note As regards a narrow definition of
the term national security, reference can be made to the Johannesburg
Principles on National Security, Freedom of Expression and Access
to Information of 1995.
Note
7. Following the terrorist attacks in Paris, the ministers of
the interior of several countries in Europe as well as Canada and
the United States made a declaration on 11 January 2015 in Paris
which called for greater international, and in particular transatlantic,
co-operation in the fight against international terrorism. This
was echoed by the informal meeting of Justice and Home Affairs Ministers
of EU member States in Riga on 29 and 30 January 2015.
Note Such co-operation had led to the
arrest of Islamist terrorists informally called “Sauerland Group”
in Germany in autumn 2007, based on telephone and email communications
between Germany and Pakistan that had been intercepted by the National
Security Agency of the United States, which had subsequently informed
the German authorities. Although Russian security services had intercepted
telephone calls of Tamerlan Tsarnaev with his mother and had informed
the intelligence services of the United States, Tsarnaev and his
brother were able to launch the bomb attack on the Boston Marathon
in 2013, thus highlighting the potentially disastrous and lethal
consequences of inefficient co-operation.
Note
8. In 2013, the European Parliament blocked the proposal to exchange
cross-border passenger data between the European Union and the United
States. Shortly after the attacks on
Charlie
Hebdo on 7 January 2015, the President of the EU Council
called on the European Parliament to speed up work on the EU Passenger
Name Record (PNR) system. On 11 February 2015, the European Parliament
finally agreed to expedite work on the PNR before the end of 2015.
Note Such work should be linked to the
finalising of the General Data Protection Regulation of the European
Union and its accession to the Council of Europe Convention for the
Protection of Individuals with regard to Automatic Processing of
Personal Data (ETS No. 108).
9. Edward Snowden, who was working with a private company sub-contracted
by the National Security Agency of the United States, stated in
The Guardian: “The government has
granted itself power it is not entitled to. There is no public oversight.
The result is people like myself have the latitude to go further
than they are allowed to.”
Note This self-critical statement illustrates
the problem that private security firms are legally responsible
solely under a given contract and the general laws of a country,
whereas democratic oversight by parliaments is applicable to public
authorities and public security services only. Outsourcing should
generally be avoided in order not to circumvent parliamentary control
functions recommended by the European Commission for Democracy through
Law (Venice Commission) in its 2008 report on the democratic control
of the armed forces.
Note
10. As rapporteur of the Committee on Legal Affairs and Human
Rights, Pieter Omtzigt (Netherlands, EPP/CD) is also preparing a
report on “Improving the protection of whistle-blowers”
Note in
parallel to this report on mass surveillance. Both reports reflect
largely on a legal analysis of the acts committed by Edward Snowden. Besides
the huge amount of copied intelligence data Mr Snowden took with
him when leaving the United States for China and finally Russia
at the end of June 2013, he would obviously be of great strategic
value for the Russian security services because of his personal
experience and knowledge as a key collaborator of US intelligence
services. This knowledge has probably already been used in order
to expose international intelligence structures and improve Russian
intelligence operations in cyberspace. Given the dismal record of the
Russian authorities in relation to transparency and access to information,
it is unlikely that general support for whistle-blowing and altruism
guided the Russian authorities when granting Edward Snowden asylum,
a residence permit, housing and remunerated work in Russia.
11. In conclusion, it is worth recalling in the current context
another citation from the judgment of the European Court of Human
Rights in Klass and others v. Germany (Application
No. 5029/71): “The Court, in its appreciation of the scope of the
protection offered by Article 8 [of the European Convention on Human
Rights], cannot but take judicial notice of two important facts.
The first consists of the technical advances made in the means of
espionage and, correspondingly, of surveillance; the second is the
development of terrorism in Europe in recent years. Democratic societies
nowadays find themselves threatened by highly sophisticated forms
of espionage and by terrorism, with the result that the State must
be able, in order effectively to counter such threats, to undertake
the secret surveillance of subversive elements operating within
its jurisdiction.” This citation is timelier today than ever before.
3 Specific explanations of the amendments
(A) The draft resolution speaks in paragraph 2 of “the lack
of adequate legal regulation and technical protection at the national
and international level”, but the report does not provide evidence
for such a harsh and categorical judgment. In fact, the Council
of Europe has produced international treaties which offer legal protection,
such as the European Convention on Human Rights and the Convention
on Cybercrime (ETS No. 185).
(B) Paragraph 7 presents an unsupported series of assertions.
They must either be substantiated or this paragraph must be deleted.
(C) Paragraph 11 of the English version speaks of “effective,
targeted surveillance of suspected terrorists or other organised
criminal groups”. It is important to have targeted surveillance
of suspected terrorists AND suspected members of organised crime.
(D) Trust among the transatlantic partners can only be established
by concluding adequate legal frameworks. The Council of Europe offers
a number of relevant legal treaties which are open to signature
by non-member States, in particular the European Convention on Mutual
Assistance in Criminal Matters (ETS No. 30), the European Convention
on the Suppression of Terrorism (ETS No. 90), the Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime (ETS
No. 141) and on the Financing of Terrorism, the Convention on Cybercrime
and the Convention for the Protection of Individuals with regard
to Automatic Processing of Personal Data. It is therefore necessary
to base future co-operation on mutual agreements rather than mere
trust.
(E) The right to “whistle blow” cannot be afforded unqualified
protection as this could lead to the sale of confidential and sensitive
information in self-interest. This amendment is based on Assembly Resolution 1729 (2010) on protection of whistle-blowers.
(F) Following the Snowden disclosures, the US President announced
in January 2014 that the NSA practice would be changed and procedures
amended regarding the US Foreign Intelligence Surveillance Court.
The US Congress started an inquiry into the facts as did the governments
of France, Germany, Spain and other countries. In addition, there
is no indication of “harsh treatment” of Edward Snowden. As he is
in Russia since the end of June 2013, such harsh treatment cannot de facto be pursued outside Russia,
and the report does not provide details of his treatment in Russia.
(G) While there is no reason for the Assembly to believe that
the inquiry committee of the German Parliament would not be capable
of assuming its parliamentary role, reference should instead be
made to the need for democratic parliamentary oversight of the security
services and armed forces in member States. The latter was thoroughly
analysed and recommended in the report on the democratic control
of the armed forces adopted by the Venice Commission in 2008. In
addition, it is important to remind governments of the potential
risk of out-sourcing intelligence operations to private firms which
are not under such democratic control.
(H) Through its resolution of 12 March 2014, the European
Parliament had invited the Secretary General of the Council of Europe
to launch a procedure against States Parties under Article 52 of
the European Convention on Human Rights. I assume that such an inquiry
has not been initiated for good reasons, because several national
parliaments and governments in member States have since held debates
about their co-operation with the US National Security Agency and
other foreign intelligence services. In this field, a lot depends
also on progress in co-ordination of EU policies and legislation.
Therefore, we should not insist on this request to the Secretary
General
(I) In 2013, the European Parliament had blocked the proposal
to exchange cross-border passenger data between the European Union
and the United States. Shortly after the attacks on Charlie Hebdo on 7 January 2015,
the President of the EU Council called on the European Parliament
to speed up work on the EU Passenger Name Record (PNR) system. This
call on the EU institutions was also made by the ministers of the interior
meeting in Paris on 11 January 2015. Such work should be linked
to the finalising of the General Data Protection Regulation of the
European Union and its accession to the Council of Europe Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data
(J) Article 8 of the European Convention on Human Rights contains
the right to the protection of the confidentiality of correspondence,
but the term “mail secret” does not exist and may be misleadingly
narrow.
(K) In its Resolution
1729 (2010) on protection of whistle-blowers, the Assembly thoroughly
dealt with the issue of whistle-blowing in view of the standards
of the Council of Europe. Therefore, it is necessary for the Assembly
to recall this resolution in this context. The granting of asylum
to Edward Snowden has been refused by several countries on legal
grounds. Even Russia has changed his status from asylum seeker to
resident of Russia. Finally, most countries in the world would not
grant asylum to people on the basis that they claim to be possibly
subjected to unfair prosecution, especially if agreements on mutual
legal assistance exist such as between the United States and many
European countries
(L) There can be circumstances where, for political or diplomatic
reasons, surveillance is justified. That justification cannot, however,
be extended to industrial espionage.
