National Security, Surveillance and Human Rights

Abstract

The Snowden revelations have raised public awareness about the potential abuses in cyber-surveillance and have sparked a global debate about protection of privacy and the need of enhanced transparency and oversight of intelligence activities. They have also led to several policy changes and legal reforms and an improvement on the overall control and oversight of surveillance in democratic States. From this point of view the impact of the Snowden revelations cannot be neglected.

On the other hand, the intrusive government surveillance programmes around the world not only remain largely intact but are also supported by new legal frameworks. Indeed, governments worldwide have enacted new intelligence and surveillance laws providing adequate legal cover to cyber-surveillance activities. As the Guardian, which published the initial Snowden revelations, stated, ‘the principal change on the agenda is granting the intelligence agencies formal licence to continue doing what they were caught doing’.

This chapter examines the case law of the European Court of Human Rights in the field of surveillance. This focus on the ECtHR is justified by the fact that the Court was the only one at the international level that has had the opportunity to analyse on numerous occasions relevant domestic laws and to proceed to a balancing of interests in such detail.

The Chapter analyses the criteria used by the Court to assess the compatibility of surveillance laws with the European Convention of Human Rights – comparing them with the case law of the Court of Justice of the European Union. It concludes that the year 2020 and 2021 will be critical in assessing the Court’s future direction on these issues as some very important judgments are expected. Beyond these cases challenging existing surveillance laws, one could expect that a new generation of cases will progressively arrive at the Court, concerning the use of even more sophisticated technologies such as facial recognition technologies.

Keywords: Human Rights, Surveillance, Right to Privacy, Data Protection, National Security, Terrorism, European Convention of Human Rights, European Court of Human Rights, Court of Justice of the European Union