Europe : ECtHR must not allow unrestricted access and collection of communications data

Europe : ECtHR must not allow unrestricted access and collection of communications data - Digital

ARTICLE 19, EFF and Privacy International, have submitted a third-party intervention in the PIETRZAK v. Poland (Application No.72038/17) case before the European Court of Human Rights. The case concerns the compatibility of the Polish legal framework governing surveillance with Article 8 of the European Convention of Human Rights. In our joint submission, ARTICLE 19 argues that communications’ ‘metadatais just as intrusive as the content of communications and therefore must be given the same level of protection. 

In the digital age, online communication, via phones or other devices, is an essential part of people’s daily lives. Their communications data reveals a significant amount of information about their identity, often more than they realise. People should be able to trust that the personal information they share about themselves, family and friends is protected. Therefore, it is imperative that police and intelligence agencies do not have access to this data without strict procedural safeguards.  

In our joint submission, the Interveners address the following points :  

  • Access to communications data can be as intrusive as content ; 
  • Direct and unrestricted access to communications data constitutes a serious interference with the right to privacy; 
  • Minimum and additional safeguards necessary to ensure compliance with the requirements of Article 8, including notification and judicial autorisation ; 
  • The impact of secret surveillance on the activities of civil society organisations ; and 
  • Victim status 

In many European countries, laws on data collection and access to to communications data are inadequate and open to abuse. For this reason, the Interveners invite the Court to hold that when governments interfere with the right to privacy, the following safeguards must be put in place : 

  • Collection of personal data or other surveillance measures that interfere with the right to privacy should be based on reasonable suspicion  that the target person may be planning, committing or having committed a crime ; 
  • Intrusive, secret surveillance measures, including the collection and access to metadata, should be authorised by a court ; 
  • Surveillance measures should be subject to independent and effective oversight; 
  • Subjects of secret surveillance should always be notified (even if post facto) ; 

In addition, the Interveners highlight that knowing police and intelligence agencies may use their powers to intercept communications of civil society organisations has a chilling effect on their exercise of freedom of expression. This endangers the public watching function of these organisations and increases the risks of retaliation for the individuals concerned. The Interveners call for enhanced safeguards against the collection of civil society organisations’ communication data so they may be able to carry out their work and protect their sources. 

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