European Court of Human Rights: Mass Surveillance is Unlawful - 20151207

European Court of Human Rights: Mass Surveillance is Unlawful - Private Internet Access 20151207

The European Court of Human Rights has found that bulk warrantless mass surveillance violates basic human rights. The case was brought by Roman Zakharov against Russia, and is binding on all members of the Council of Europe – meaning the European Union and a lot more. It’s hard to see how this doesn’t expose lots of European governments to lawsuits from their citizens for human rights violations.

The verdict, published on December 4, grants Zakharov 40,000 euros in court costs against Russia for violation of Article 8 – the right to privacy – of the European Convention of Human Rights. The European Court of Human Rights (ECHR) is based in Luxembourg, and is confusingly a completely separate entity from the European Court of Justice (the ECJ) in Strasbourg. The ECHR is not the top court of the European Union, but has the single task of upholding the European Convention on Human Rights, which has some 50signatories, notably including Russia. To add to the confusion, the European Convention of Human Rights is part of the Constitution – or the Constitution-that-must-not-technically-be-called-a-Constitution – of the European Union. Therefore, the ECHR also rules on the Constitution of the European Union. This was one such case.

Russia, like many European countries, has adopted “security” laws that enable warrantless bulk wiretapping of various kinds. Such mass surveillance has been gradually introduced, and has very sketchy support from a legal standpoint, which hasn’t hindered surveillance hawks from pushing them through at opportunistic moments. This is an example where division of power and independent branches of government seems to prove its worth, as this international court says enough is enough.

In particular, it’s interesting to note that the Court didn’t find it necessary for Zakharov to show his privacy had actually been violated – the Court found it was enough that the framework was in place, and that there was no way to know whether a violation had taken place, as there is no authorization and no oversight. Choice quote via Amelia Andersdotter, former Pirate MEP:

270. The Court considers that the manner in which the system of secret surveillance operates in Russia gives the security services and the police technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. Although the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system (see Klass and Others, cited above, § 59), the Court considers that a system, such as the Russian one, which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorisation to the communications service provider, or to anyone else, is particularly prone to abuse. The need for safeguards against arbitrariness and abuse appears therefore to be particularly great.

There is hardly any mass surveillance law in Europe that will pass this filter. In theory, the field is now open for all citizens of Europe who live under mass surveillance regimes to sue their governments for violation of privacy.

Before a lot of people do so, though, it’s also noteworthy that Zakharov wasn’t awarded damages for the violation, merely court costs and a verdict in his favor. It’s doubtful Russia will change anything as a result. However, there was dissent on the matter of damages, with one Justice finding it legally insufficient to refrain from awarding the requested 9,000 euros in damages of the in abstractia violation.

Your privacy remains your own responsibility, and apparently, something good can come from demanding it back, too.

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