Secret Surveillance Requires Adequate Safeguards to Protect Human Rights
The decision of the Fourth Section of the European Court of Human Rights (‘ECtHR’) earlier this month in the case of Szabó and Vissy v. Hungary has again raised questions over the lawfulness of governments to use new technologies to conduct widespread surveillance on its citizens in the name of ‘national security’. The case emphasises the tension between citizens’ right to privacy and the increasing ability of the government to eavesdrop in an age where more personal data than ever before is stored and communicated by electronic means.
The applicants, who are staff members of a non-governmental “watchdog” organisation voicing criticism of the Hungarian government, successfully complained that the Hungarian secret surveillance framework, namely, section 7/E (3), was in breach of Article 8 of the European Convention on Human Rights (‘ECHR’) (the right to respect for private and family life, the home and correspondence) because it potentially exposed them to unjustified and disproportionately intrusive measures, in particular for want of judicial control.
Central to the applicant’s complaint are the powers of a separate police unit, the ‘Anti-Terrorism Task Force’, to carry out surveillance measures of Hungarian citizens in order to prevent terrorist acts or in the interests of Hungary’s national security. With authorisation of the Minister of Justice, the Anti-Terrorism Task Force can conduct surveillance pursuant to section 7/E (3) of Act no. XXXIV of 1994 and the National Security Act via a range of surveillance measures, including: searching and surveilling the individual’s home, opening post and parcels belonging to the individual and recording data transmitted by electronic communication or contained on a computer.
In its decision, the ECtHR found an interference under Article 8 in respect of the rules of section 7/E (3) surveillance and undertook an assessment of whether the ‘interference’ with the applicant’s right to respect for his or her private life was limited to what is ‘necessary in a democratic society’, pursuant to Article 8 § 2. Citing Klass and others and making reference to the “character of the interference in question and the potential of cutting-edge surveillance technologies to invade citizens’ privacy” the ECtHR interpreted this to require ‘strict necessity’. The ECtHR considered the secret surveillance framework fell short of the strict necessity requirement and consequently prone to abuse for a number of reasons:
- the legislation did not require the Anti-Terrorism Task Force to provide reasons for requesting surveillance or draw a link between the targeted person and the prevention of any terrorist threat;
- the scope of the measures were broad and imprecise and could include virtually anyone which might be interpreted as paving the way for mass surveillance;
- the legislation did not provide for notification to the targeted person(s) or any formal remedies in the case of perceived abuse;
- the time limits imposed by the legislation on surveillance renewal periods were vague and imprecise;
- of utmost importance, given that the authorisation for surveillance was both approved and conducted by the executive, judicial rather than political oversight is essential to ensure an independent, impartial and proper procedure.
Ultimately, the ECtHR was not convinced that the legislation provided adequate safeguards for individual citizens and Hungary’s surveillance legislation framework was thus in breach of Article 8 of the ECHR. For now, this remains the ECtHR’s final word on the issue, subject to a successful referral to the Grand Chamber.
The effect of the ECtHR’s decision does not appear to undermine a state’s ability to conduct surveillance measures, but rather identifies the checks and balances that must be in place to strike the right balance between a citizen’s right to privacy and the unfettered discretion of the government to conduct surveillance in the name of ‘national security’. This was highlighted by the ECtHR in its decision: “[I]n view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse”.
This decision of the ECtHR could have implications for the UK’s draft Investigatory Powers Bill published on 4 November 2015. The draft Bill has attracted criticism for its extensive surveillance measures which legalises law enforcement and security and intelligence agencies to hack computers and bug telephones with a warrant; obliges companies to assist with hacking operations enabling authorities to bypass encryption; requires phone and internet providers to store data on every citizen for a period of 12 months (raising questions over the security of that information); and enables the Secretary of State to initially authorise warrants which are then subject to approval by a pseudo-independent body of ‘Judicial Commissioners’ consisting of individuals appointed by the executive. The draft Bill is currently being considered by a Joint Committee before its potential introduction to the House of Commons in the coming months.
Sarah Cotterill, Paralegal, Peters & Peters
 no. 37138/14, ECHR 2016.
 Klass and others v Federal Republic of Germany, 6 September 1978, § 42, Series A, no. 28.
 Szabó and Vissy v. Hungary, no. 37138/14, § 73, ECHR 2016.
 ibid, § 77.
 ibid, § 57.