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The European Court of Human Rights Constrains Mass Surveillance (Again)

In a decision that may someday be considered the penultimate nail in the coffin that European courts have been building for mass surveillance, the European Court of Human Rights has declared that Hungarian surveillance law contravenes the right to privacy enshrined in the European Convention on Human Rights. In doing so, the Court reinforced last month’s findings of the Grand Chamber in Zakharov v. Russia and opined at length on the need for human rights law principles to be “enhanced” to take into account States’ increased appetite for “massive monitoring of communications.” Despite being a decision of the Fourth Section of the Court, and thus open to revision by the Grand Chamber should a party apply, the judgment in Szabo v. Hungary underscores the likelihood that the European Court intends to definitively outlaw mass surveillance.

Szabo concerned the powers of the Hungarian intelligence agency, the Anti-Terrorism Task Force (TEK), under the Police Act of 1994. The Act provided one set of surveillance powers exercisable in the context of criminal investigations (which subjected surveillance to judicial authorization), and another set of powers (in section 7/E(3)) applicable to intelligence gathering in the context of national security. The national security surveillance powers were subject to ministerial, rather than judicial, authorization; were not linked to a particular crime; and required a warrant to relate only to a premises, persons concerned, or “a range of persons,” and was thus potentially executable against any person. In this regard, the Court held that such powers might “be interpreted as paving the way for the unlimited surveillance of a large number of citizens” (para. 67).

In analyzing whether the law contained the necessary safeguards for systems of secret surveillance — long-recognized as being those articulated in Weber and Saravia v. Germany — the Court opined at length on the dangers posed by new surveillance technologies. It also called into question whether the development of surveillance methods had been accompanied by a simultaneous development of legal safeguards. In an uncommon example of cross-jurisdictional judicial discourse, the Court seemed to rely heavily in this regard on the decisions of the European Court of Justice in Schrems and Digital Rights Ireland, as well as the 2013 report on privacy by the United Nations Special Rapporteur on freedom of expression. The Court concluded that mass surveillance practices may result in “particularly invasive interferences with private life” which warrant an “enhance[ment]” of the guarantees required by the extant Convention case-law on the interception of communications (para. 70).

Although the Court also concluded that it was not warranted to embark on such an enhancement in the present case, the Court found the Hungarian law fell short of existing principles in any event. From there, it proceeded to make a number of findings which arguably do enhance the Weber principles, or at the very least follow the path set by the Grand Chamber in Zakharov. These features of the decision are outlined below.

Reasonable Suspicion

Any remaining doubt left after the Zakharov that the Court is seeking to reassert the requirement for individualized suspicion is clearly eradicated by the Szabo decision, again with full knowledge of the nature of mass surveillance. In the present case, the Court remarked on the absence of any legal safeguards requiring TEK to establish “a sufficient factual basis for the application of secret intelligence gathering measures which would enable the evaluation of necessity of the proposed measures – and this on the basis of an individual suspicion regarding the target person” (emphasis added). Only demonstrable existence of a reasonable suspicion, the court emphasized, “would allow the authorising authority to perform an appropriate proportionality test” (para. 71).

A separate but concurring opinion issued by Judge Pinto de Albuquerque criticized the majority’s choice of words; by substituting “individual suspicion” for “reasonable suspicion,” the opinion argued, the Court used “a vague, anodyne, unqualified” term which “equates to “overall suspicion, i.e., to the irrelevance of the suspicion test at all”. In Judge Pinto de Albuquerque’s view, the use of this separate and lower standard has the effect of condoning “strategic surveillance” that may be based on less than reasonable suspicion (para. 35).

But, the concurring opinion seriously overstates the difference between the two terms and seems to misinterpret the intention of the majority. The majority in Szabo is clearly interested in mitigating the “threat to privacy” occasioned by the indiscriminate surveillance of communications (para. 70). It is not endorsing “strategic surveillance” or bulk intelligence gathering. In a strongly worded statement the Court declared that

it would defy the purpose of government efforts to keep terrorism at bay, thus restoring citizens’ trust in their abilities to maintain public security, if the terrorist threat were paradoxically substituted for by a perceived threat of unfettered executive power intruding into citizens’ private spheres by virtue of uncontrolled yet far-reaching surveillance techniques and prerogatives. (para. 68)

Moreover, the references by the Court to the need for an individual suspicion are accompanied by citations to a paragraph in Zakharov that emphasizes the need for a court to “assess whether there is a factual basis to suspect the person in respect of whom” surveillance measures are being carried out (para. 71, citing Zakharov, para. 261).

Strict Necessity

Szabo also introduced a “strict necessity” standard, further underscoring the Court’s intention to endorse the approach to reasonable suspicion taken in Zakharov. In an unexpected finding not foreshadowed by the Zakharov decision, the Court endorsed an interpretation of the phrase “necessary in a democratic society” to require “strict necessity,” in light of the particular character of the interference and the potential for mass surveillance. Secret surveillance must be strictly necessary in two senses, the Court said:

  1. It must be strictly necessary as a general consideration for the safeguarding of democratic institutions; and
  2. it must be strictly necessary as a particular consideration for the obtaining of vital intelligence in an individual operation (para. 73).

The latter element, in particular, both supports the centrality of a reasonable suspicion standard to the analysis, and reinforces its findings around the need for judicial, rather than ministerial, authorization.

Judicial Authorization

In Zakharov, the Grand Chamber emphasized the need for an authorization procedure independent from the the executive, while accepting that non-judicial authorities may be competent to authorize interception if they are capable of verifying the existence of a reasonable suspicion (Zakharov, para 260). In Szabo, the Court held that authorization by the Minister of Justice, formally independent of both the TEK and the Minister of Home Affairs, was “inherently incapable of ensuring the requisite assessment of strict necessity (para. 75). Although the Court recognized the Zakharov authority and the finding in Klass that it is “in principle desirable” to have judicial authorization (Klass, para. 55), it proceeded to tweak that finding slightly to hold that “in this field, control by an independent body, normally a judge with special expertise, should be the rule and substitute solutions the exception, warranting close scrutiny” (para. 77, emphasis added). To avoid doubt, the Court added that “supervision by a politically responsible member of the executive, such as the Minister of Justice, does not provide the necessary guarantees” (para. 77). This is arguably the strongest statement by the European Court to date on the requirement under Article 8 for judicial authorization.

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The Szabo decision is by no means crystal clear authority, nor is it a definitive pronouncement of the inherent unlawfulness of mass surveillance systems. Nevertheless, it lays fertile ground for such a decision in the future — this question will be at play in the Court in the coming months as it considers several cases brought against the UK’s bulk interception program. Szabo reinforces many of the key findings in Zakharov and begins the process of “enhancing” the safeguards under Article 8 to ensure their relevance to mass surveillance, in particular by emphasizing the need for individualized suspicion, arguing for a strict necessity test, and removing any doubt about the appropriateness of ministerial authorization in this field.

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Human Rights Lawyer and Independent Consultant Follow her on Twitter (@carlynyst).