20160119 Europäischer Gerichtshof für Menschenrechte gegen Massenüberwachung

19.01.2016 Europäischer Gerichtshof für Menschenrechte gegen Massenüberwachung

Did the European Court of Human Rights Just Outlaw “Massive Monitoring of Communications” in Europe?

As the Center for Democracy & Technology (CDT), a British NGO states, over the past two years, a trio of high-profile cases before the European Court of Human Rights have become the focus of many activists’ hopes that the Court will effectively outlaw indiscriminate surveillance in Europe once and for all.

In the first case, Roman Zakharov v. Russia, a St. Petersburg publisher (who also chaired an NGO that promotes journalists’ rights) challenged laws allowing the Russian security services to intercept any telephone conversation without a judicial order through surveillance equipment that had been installed at mobile phone companies.
In the case that was the subject of yesterday’s judgment, Szabó and Vissy v. Hungary, two activists challenged sweeping legislation adopted in 2011 that allows the Hungarian police to search houses, postal mail, and electronic communications and devices without judicial approval when seeking to prevent terrorism or otherwise protect Hungary’s national security.
And there ist still the case before the European Court of Human Rights that concern the United Kingdom’s large dragnet surveillance programs—and the country’s collaboration with the NSA.

In all of these cases the court states that the governments involved had violated the right to respect for private life and correspondence, which is enshrined in Article 8 of the ECHR. Article 8 requires that any government interference with this right to privacy must meet two criteria. First, the interference must be done “in accordance with the law”: that is, the country’s own law, international law, and what the Court has described generally as the “rule of law.” Second, it must be “necessary in a democratic society” to achieve one of a limited set of purposes such as the protection of national security or the prevention of crime.

The Court found that a government may only intercept telephone communications where the body authorizing the surveillance has confirmed that there is a “reasonable suspicion” of wrongdoing on the part of “the person concerned.” This language, along with the Court’s statement that a surveillance authorization “must clearly identify a specific person … or a single set of premises” as the subject of the monitoring, seemed to set the stage for a ruling that UK-style society-wide surveillance programs such as Tempora are illegal under the ECHR.

In other words: no gathering of an enormous indiscriminate haystack in order to search for a needle.

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