Europe: queue of complaints against snooping laws grows by the month

The Snowden revelations are no major topic anymore and it is getting quiet on surveillance legislation in Europe. Really? The growing stream of challenges of old and new snooping laws tell another story. Europeans don’t shy away from challenging their legislators: in just one year, 13 independent complaints have been filed against France's new surveillance law alone. Monika Ermert offers a quick check on the many pending and newly announced cases before the European Court of Human Rights, as well as national courts.

Before the wave of French complaints came in, the mass surveillance by the British General Headquarter of Communications (GCHQ) was the top most targeted agency in Europe. Three cases against GCHQ and the British government are underway at this moment.

Most watched European agency: GCHQ

Big Brother Watch (Big Brother Watch and others v. United Kingdom 58170/13) was fast to bring its case to Strasbourg in 2013. The Bureau of Investigative Journalism and journalist Alice Ross followed (62322/14). Both cases challenge the mass surveillance programmes Tempora, Prism and Upstream used by the GCHQ, arguing that the programmes violated articles 8 and 10 - respectively Right to respect for private and family life and Freedom of expression - of the European Convention on Human Rights.

Probing national judiciary first, Amnesty International and nine other human rights organisations from eight countries on four continents, in 2015 squeezed an acknowledgement out of the British Investigatory Powers Tribunal, which while saying that the warrant regime for the interception of external communication was legal, admitted there had been violations either of article 8 or article 10, even before the government had reacted to the complaints following the Snowden revelations (24960/15).

Soon to be decided

While all three cases are not on the desks of the Strasbourg court, the next case to be decided by the Human Rights Court on an “old” snooping law in a EU member state can be expected to be the one brought to attention by the Centrum för Rättvisa versus the blanket surveillance of the Swedish Radio Defense Establishment (Försvarets radioanstalt, FRA) as early as 2008 (35252/08). Although this is a Pre-Snowden case, the complaint has gained traction with the “help” of the Snowden revelations. In the most recent written observation sent to the court by the applicants, the Rätvissa activists make the point that “it is no longer a secret that the FRA and the NSA cooperate and have shared information between each other”.

The Swedish complaint, following a considerable public debate over the changes to the Swedish Signal Intelligence Act of 2008, shares many similarities with the anti-GCHQ complaints. It is all about the indiscriminate tapping, processing and storing of internet data traffic at cross-border exchange points. Certainly this decision will be of considerable interest to the the queuing complainants.

Cross-border snooping and third party interventions

In most of these case there have been third-party interventions on behalf of the complainants, many addressing the cross-border nature of big brother. The Centrum för Rättvisa reports in its most recent update that the Swedish legislation also “triggered reactions in other Nordic countries,” namely the Norwegian section of the International Commission of Jurists, which intervened on the case in Strasbourg by focusing its attention on the effects of the cross-border taps for Norway.

More international opposition to the snooping - of online services that trade data with spy colleagues - by European neighbouring countries was expressed in a third party intervention in the Big Brother Watch versus UK case. The Dutch Against Plasterk coalition (consisting of five parties: the Dutch Association for Criminal Attorneys, the Dutch Association of Journalists, the Internet Society Netherlands, and the Privacy First Foundation) challenged its own government for the espionage taking place domestically. The coalition thereby appealed a first instance ruling on 2 February 2016 by the Court of Appeal in The Hague.

National cases against the lack of oversight of intelligence agencies

There are more national cases that might also end up in the European courts someday, not too far in the future. As part of the most interesting are the challenges by two German oversight bodies against the German government for inhibiting the procedures of the constitutional watchdogs.

Working their way through the complicity of their own national intelligence service with those of the United States in a parliamentary inquiry, the opposition parties saw no other way to get access to crucial documents about the data exchange, than by filing a constitutional complaint (2 BvE 2/15). The German government had continuously blocked access to lists of so-called “selectors” - identifiers sent over by the National Security Agency to their German colleagues with a friendly request to hand over the hits from the full-takes of data traffic collected.

Even more spectacular is a second complaint on the same issue from the core watchdog on tapping activities, the German G10 Commission (2 BvE 5/15). “They tricked us,” was the instant reaction of the former head of the G10 Commission, Hans de With, to the revelations of BND-NSA cooperation. The steadfast German official, now in his eighties, is one of the unusual additions to the list of complainants against the surveillance practice in Europe.Germany's Federal Constitutional Court announced in its annual preview it wanted to rule on both cases this year.

Another noteworthy complaint before the German administrative courts is that of DeCIX, the “victim” of the massive tapping by the BND and the world’s largest internet exchange point. Will these national cases reach the European courts at some point? Possibly yes.

New surveillance laws, new cases

European citizens, activists – and even some politicians – have been relatively active in challenging the old snooping regimes in their home countries. The surveillance laws enacted after Snowden seem to evoke even stronger reactions.

The new French surveillance bill of May 2015, criticised by its opponents as a French version of the Patriot Act and in November “enhanced” with even broader powers for snooping on non-French nationals – i.e. neighbours from Europe – has been challenged in Strasbourg in 13 different complaints, as of today:

• ASSOCIATION CONFRATERNELLE DE LA PRESSE JUDICIAIRE and others v. France 49526/15
• MARTIN v. France 49616/15
• LECOMTE v. France 49615/15
• BABONNEAU v. France 49617/15
• SOUCHARD v. France 49618/15
• TRIOMPHE v. France 49619/15
• EGRE v. France 49620/15
• DENIAU v. France 49621/15
• ORDRE DES AVOCATS AU BARREAU DE PARIS v. France 55058/15
• SUR v. France 55061/15
• EYDOUX v. France 59602/15
• CONSEIL NATIONAL DES BARREAUX v. France 59621/15
• SYNDICAT NATIONAL DES JOURNALISTES and FEDERATION INTERNATIONALE DES JOURNALISTES v. France 5763/16

More to come

In Poland, too, the opponents of the new surveillance legislation which came into force on 7 February 2016 are considering litigation “on the ground that there are no adequate safeguards for citizens, no right to information that our data has been used, no court oversight,” Katarzyna Szymielewicz from thePanoptykon Foundation told the Internet Policy Review.

The Polish complainants who hope to bring their case to Strasbourg in the summer months would even more prefer to see their case sent directly to the European Court of Human Rights. Given the “takeover” and the legal changes to the Polish Constitutional Court by the ruling party in Poland - which for many amounts to a “constitutional crisis,” the activists are concerned that there will be no avenue for them to challenge the violation of fundamental rights in their country.

Another country that has to face challenges in Strasbourg is Finland, where a new surveillance legislation is currently making its way through the parliamentary process. The Electronic Frontier Foundation Finland has been beating the drum against new legislation by the Finnish secret service SUPO for some time. It warns against a clash of bulk surveillance with the constitutional rights.

The Snowden revelations’ impact

The list of cases pending is growing, and the Snowden revelations clearly make their mark in the rulings of the last two years. Not only are there references to the revelations in Szabo and Vissy versus Hungary and other recently finalised surveillance cases. The Court actually seems more inclined now to accept complaints by these victims of secret surveillance without them being able to give proof that data collection about them happened. “In recognition of the particular features of secret surveillance measures (...) the Court has accepted that, under certain circumstances, an individual may claim to be a victim on account of the mere existence of legislation permitting secret surveillance, even if he cannot point to any concrete measures specifically affecting him,” the judgment from January 2016 reads. Article 8 was violated by Hungary's National Security Law, the Court ruled, due to lack of safeguards for citizens, all of whom could become victims of the surveillance activities.

Given the number of cases and the prospects for more, this looks like a protracted fight over constitutional rights in more and more surveilled societies. Only very rarely does the protection of constitutional rights tip the scales, although this sometimes still happens… like in Portugal.

Portugal is not yet on the current list of states challenged for snooping laws. The Portuguese Constitutional Court blocked new legislation prepared in the common NSA-envy mood in August 2015 before it became law, after a referral of the then President Aníbal Cavaco Silva. Naturally, the snooping legislation is expected to be re-written under the new administration.