Mass Surveillance Endangers Human Rights and Does Not Prevent Terrorist Attacks, Says Council of Europe

The Parliamentary Assembly of the Council of Europe adopts a resolution and a recommendation contained in a report expressing deep concern about mass surveillance.1

Genesis of the report

The Parliamentary Assembly is a statutory body of the Council of Europe composed of 321 parliamentarians from its member states. It ‘holds governments to account over their human rights records, and presses states to achieve and maintain democratic standards.’ It is the originator and guardian of the European Convention on Human Rights (ECHR), as well as more than 200 other treaties of European and wider significance, including the Convention on Cybercrime. It also elects the judges of the European Court of Human Rights, which is an international court overseeing the compliance of member states with the ECHR.

The Assembly can adopt resolutions and recommendations in order to exert its influence on Council of Europe’s members and on other states. Resolutions and recommendations are usually contained in reports, which are prepared by rapporteurs appointed by committees.

On 6 November 2013, the Committee on Legal Affairs and Human Rights appointed Pieter Omtzigt as the rapporteur on ‘massive eavesdropping in Europe’, based on the Assembly’s concern about the information disclosed by Edward Snowden. In preparing the report, the rapporteur conducted a teleconference hearing with Snowden on 8 April 2014. The resulting report on mass surveillance was put forward to the Parliamentary Assembly, which approved the enclosed resolution 2045 (2015) and recommendation 2067 (2015) on 21 April 2015 by an overwhelming majority of votes. Some minor changes to the draft text were made, but most of the changes proposed by the Committee on Culture, Science, Education and Media and presented by a British delegate that were meant to soften some formulations were refused by the Assembly.

What’s in the adopted documents?

The resolution

Resolutions contain decisions by the Assembly on questions within its authority, and expressions of views on matters for which the Assembly is responsible. According to the resolution, the Assembly declares its deep concern about the mass surveillance practices disclosed since June 2013 reported by journalists communicating with Edward Snowden. The resolution states, in short, that:

– the surveillance practices endanger fundamental human rights;
– the compromising of security by certain intelligence agencies makes everybody vulnerable to attacks from other state actors and criminals alike;
– there is extensive use of secret laws and regulations, applied by secret courts using secret interpretations of the applicable rules, which undermines the public trust in the judiciary;
– the Assembly is worried that the mass surveillance tools, developed by the United States and its allies, might fall in the hands of authoritarian regimes; Russian Federation is explicitly mentioned as a case in point [INCYDER: it should be noted that the Russian delegation has its voting rights in the Assembly suspended due to Russia’s annexation of Crimea];
– in several countries, a massive ‘Surveillance-Industrial Complex’ has evolved;
– national parliaments should properly oversee the activities of their security services and limit the subcontracting of their operations to private companies;
– there are double standards in some nations’ laws, discriminating between citizens and non-citizens in the protection of their privacy, and that even these standards are bypassed by the Five-Eyes states by acquiring data on their citizens from each other;
– mass surveillance does not appear to have contributed to the prevention of terrorist attacks; and
– the Assembly welcomes the investigation carried out by the European Parliament and the adoption of the resolution of 12 March 2014 on US NSA surveillance programme, surveillance bodies in various [EU] Member States and impact on EU citizens’ fundamental rights.

The Assembly urges member and observer states to:

– enact laws that make any collection of data without the consent of the person involved subject to judicial review, while making no distinction between data and metadata;
– subject their intelligence services to adequate judicial and parliamentary control;
– protect whistle-blowers reporting illegal surveillance activities and grant them asylum if necessary;
– agree on a multilateral ‘Intelligence Codex’, which should prevent participating states from conducting on-line spying on each other, and afford an equal standard of privacy protection to the citizens of participating states; and
– promote the wide use of encryption and other means for individuals to combat surveillance.

The Assembly also asks the European Union to promote the privacy of its citizens with respect to the United States. This means exerting pressure on the United States during negotiating or implementing the Transatlantic Trade and Investment Partnership (TTIP), the Safe Harbour decision, the Terrorist Financing Tracking Program (TFTP), and the Passenger Name Records (PNR) agreement.

The recommendation

Recommendations contain proposals to the Committee of Ministers of the Council of Europe which the governments of the member states are supposed to implement. The recommendation contains three particular proposals to the Committee of Ministers:

– addressing a recommendation to the member states on ensuring the protection of privacy with respect to mass surveillance, further exploring related internet security issues, in particular with regard to human rights;
– launching the ‘Intelligence Codex’ initiative; and
– co-ordinating its activities with the European Union bodies involved in negotiating data and trade protection issues with the United States in promoting the principles laid down in the European Convention on Human Rights.

The explanatory memorandum

The explanatory memorandum develops the topics which are outlined more briefly in the resolution and recommendation. It explains the nature and extent of mass surveillance and its implications for human rights, international cooperation, and the future of the internet. It also discusses possible solutions to minimise the consequences of mass surveillance in more detail.

The report refers to the ongoing UN process to protect privacy and other human rights online, which was covered by the INCYDER in the news on UN General Assembly resolution A/RES/69/166 of 18 December 2014 ‘The right to privacy in the digital age’.

It also refers to the parallel process of investigation of US NSA activities in the European Parliament.

A way ahead

Even though the Assembly’s resolutions and recommendations are not legally binding, they can receive significant public attention (compare the 2006-2007 reports on secret detentions and illegal transfers of detainees involving Council of Europe member states) and consequently inform national policies and lead to developments in international law.

The documents may widen the split on the perception of privacy between the Five Eyes intelligence alliance (USA, UK, Canada, Australia, New Zealand) and continental Europe, but could also put pressure on European and other countries to adopt stricter privacy laws and limit the activities of their intelligence services.

Tomáš Minárik

This publication does not necessarily reflect the policy or the opinion of the NATO Cooperative Cyber Defence Centre of Excellence (the Centre) or NATO. The Centre may not be held responsible for any loss or harm arising from the use of information contained in this publication and is not responsible for the content of the external sources, including external websites referenced in this publication.

  1. This news report is an update of a previous INCYDER report from 30 January 2015 covering the adoption of the draft report approved by the CoE’s Committee on Legal Affairs and Human Rights. []