After years of extension, in the greatest secrecy, of the means of mass surveillance, the law is beginning to regain its place in our democratic societies. On pressure from judges more than governments or national parliaments. After receiving requests, in 2013, 2014 and 2015, from British plaintiffs denouncing the abuses of the mass interception regime set up in their country, the European Court of Human Rights (ECHR) rendered, Tuesday 25 May, a judgment condemning London for violation “The right to respect for private and family life and communications”. The Strasbourg Court also condemned the United Kingdom for the lack of a legal framework aimed at “Obtaining communication data from communication operators”.
On the same day, the Court condemned Sweden for “Insufficient guarantee in the mass collection of intelligence from electromagnetic sources” and reached “To privacy”. These procedures were born from the revelations, in 2013, of Edward Snowden, the former contractor of the American National Security Agency (NSA), on the global web of surveillance created, in particular, by his country and the United Kingdom. These decisions are now case law and will force other European states, including France and Germany, with powerful systems for collecting personal data, to adapt their rights to better protection of individual freedoms.
In its defense, the British government argued that the purpose of mass surveillance was not “No search for communications from identified targets [au préalable] “, But “ to accumulate data and then decide who should be targeted ”. Reacting to the judgment, a Johnson government spokesperson said “The UK has one of the most robust and transparent data protection regimes in the world. The Investigatory Powers Act has already replaced large parts of the 2000 regulation, which was the subject of prosecution ”. The 2000 law on investigative powers was indeed amended in 2016.
The ECHR is not opposed to mass surveillance as such. In its judgment, it even considers that, “Taking into account the multiple risks which States must face in modern societies, recourse to the regime of mass interceptions is not in itself contrary to the Convention [européenne des droits de l’homme] “. However, she judges that “Such a regime must be framed by end-to-end guarantees”. In each country, she says, a legal framework that appreciates “The necessity and proportionality of the measures taken” so that at each stage of the surveillance process, mass interception activities are subject to “The authorization of an independent authority, from the outset, and that operations are subject to independent control carried out a posteriori”.
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