Opinion 04/2014 on surveillance of electronic communications for intelligence and national security purposes


Executive Summary

Since the summer of 2013, several international media outlets have reported widely on surveillance activities from intelligence services, both in the United States and in the European Union based on documents primarily provided by Edward Snowden. The revelations have sparked an international debate on the consequences of such large-scale surveillance for citizens’ privacy. The way intelligence services make use of data on our day-to-day communications as well as the content of those communications underlines the need to set limits to the scale of surveillance.

The right to privacy and to the protection of personal data is a fundamental right enshrined in the International Covenant on Civil and Political Rights, the European Convention on Human rights and the European Union Charter on Fundamental Rights. It follows that respecting the rule of law necessarily implies that this right is afforded the highest possible level of protection.

From its analysis, the Working Party concludes that secret, massive and indiscriminate surveillance programs are incompatible with our fundamental laws and cannot be justified by the fight against terrorism or other important threats to national security. Restrictions to the fundamental rights of all citizens could only be accepted if the measure is strictly necessary and proportionate in a democratic society.

This is why the Working Party recommends several measures in order for the rule of law to be guaranteed and respected.

First, the Working Party calls for more transparency on how surveillance programmes work. Being transparent contributes to enhancing and restoring trust between citizens and governments and private entities. Such transparency includes better information to individuals when access to data has been given to intelligence services. In order to better inform individuals on the consequences the use of online and offline electronic communication services may have as well as how they can better protect themselves, the Working Party intends to organise a conference on surveillance in the second half of 2014 bringing together all relevant stakeholders.

In addition, the Working Party strongly advocates for more meaningful oversight of surveillance activities. Effective and independent supervision on the intelligence services, including on processing of personal data, is key to ensure that no abuse of these programmes will take place. Therefore, the Working Party considers that an effective and independent supervision of intelligence services implies a genuine involvement of the data protection authorities.

The Working Party further recommends enforcing the existing obligations of EU Member States and of Parties to the ECHR to protect the rights of respect for private life and to protection of one's personal data. Moreover the Working Party recalls that controllers subject to EU jurisdiction shall comply with existing applicable EU data protection legislation. The Working Party furthermore recalls that data protection authorities may suspend data flows and should decide according to their national competence if sanctions are in order in a specific situation.

Neither Safe Harbor, nor Standard Contractual Clauses, nor BCRs could serve as a legal basis to justify the transfer of personal data to a third country authority for the purpose of massive and indiscriminate surveillance. In fact, the exceptions included in these instruments are limited in scope and should be interpreted restrictively. They should never be implemented to the detriment of the level of protection guaranteed by EU rules and instruments governing transfers.

The Working Party urges the EU institutions to finalise the negotiations on the data protection reform package. It welcomes in particular the proposal of the European Parliament for a new article 43a, providing for mandatory information to individuals when access to data has been given to a public authority in the last twelve months. Being transparent about these practices will greatly enhance trust.

Furthermore, the Working Party considers that the scope of the national security exemption should be clarified in order to give legal certainty regarding the scope of application of EU law. To date, no clear definition of the concept of national security has been adopted by the European legislator, nor is the case law of the European courts conclusive.

Finally, the Working Party recommends the quick start of negotiations on an international agreement to grant adequate data protection safeguards to individuals when intelligence activities are carried out. The Working Party also supports the development of a global instrument providing for enforceable, high level privacy and data protection principles.

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