sou · GYB3103 · 2010-12-23 00:00:00 — First, I have chosen to let my mobile phone operator, or bank, have access to this location information for their purposes (purposes which also serve my own – ease of communication and security in banking transactions).93 A model of concentric circles of privacy can be used here.94 The individual has an interest in determining, or at least influencing, who has access to such information, and for what purposes. I have not chosen to let the , or the tax authorities, or my childs school, or my employment officer, know where I am at all times. The legislature may decide that the interests of society in letting the find out, in an individual case, where a person has been or where s/he is now outweigh that persons interests in his/her movements secret. But this is not the same thing as saying that s/he has no interest in his/her movements secret from the or any other state authority. Second, the systematic collection of this information allows the state to build up a much larger picture of a persons private life than is possible for any private actor. I conclude that if information on the numbers dialed and duration of a telephone call is an interference with private life, it would seem to follow that obtaining location information on a person, manually or remotely, by following mobiles, reading keycards etc. will also be interferences in private life. The Court in the Uzun case has recently dealt with the question of whether the attaching of a location-sending device to a car, con- stitutes an interference with private life. A location device can give information equivalent to following a persons mobile phone, when it is planted in a persons private car. In the Uzun case, a GPS receiver was planted in the car of the applicants accomplice, and this enabled the to follow the two suspects and build up a picture of their movements over a period of three months. It also facilitated aural surveillance (shadowing) of them, which in turn made it possible to further evidence. The Court stated that GPS surveillance is by its very nature to be distinguished from other methods of visual or acoustical surveillance which are, as a rule, more susceptible of interfering with a persons right to respect for private life, because they disclose more information on a persons 93Cf The Courts statement in PG and JH, op. cit metering, which does not per se offend against Article 8 if, for example, done by the telephone company for purposes, is by its very nature to be distinguished from the interception of communications which may be undesirable and illegitimate in a democratic society unless justified at para. 94See, e.g. Nagel, 1998. conduct, opinions or feelings95 It nonetheless came to the conclusion that this did constitute an interference with private life. One can argue that it does not automatically follow from the Uzun case that any and all uses of GPS receivers and similar devices involves an interference with private life. In Uzun the target was identified and the purpose was surveillance of this target. The situa- tion is arguably different where a GPS receiver or other sensor is attached to an alarm or to an object hidden somewhere, say a hidden weapons cache, stolen goods, or a bag containing ransom money in a kidnap case. Having said this, where the sensor is con- nected to more sophisticated equipment which can involve identi- fication, e.g. the device is capable of taking pictures when triggered, the situation could be different. One can also distinguish the facts of the Uzun case from the of such a device in, e.g. a container, when the or customs want to follow stolen, smuggled or counterfeit goods. The purpose here will most often be simply to follow the goods in question. A third situation argubably different from the facts of the Uzun case is where the assist the owner of a vehicle to secure the return of a stolen vehicle (or vice versa). Many expensive cars and trucks already have GPS devices fitted, which can be used as an anti-theft device, enabling the owner and/or the to follow a stolen vehicle. Nonetheless, even if one can argue that the use of a GPS receiver in such circumstances does not involve an interference with private life, it obviously facilitates visual observation.96 And where perma- nent and/or systematic records are kept of such visual observation, then there is an interference. Moreover, there is the risk of abuse to think about: when one type of use of a GPS receiver is within the discretion of the and another type is not, there are obvious dangers that the area of application of the former category is ex- tended in practice. The sensible approach would seem to be to regu- late all uses of GPS receivers on a similar basis to teledata. 96Compare the points made above in section 5.2.2 regarding participatory audio surveillance. 5.3.5 Digital private spaces The final issue in this section relates to whether it is an interference with a persons private life to access his or her private space on a server. It is clear from Copeland and other cases that the moni- toring of a persons internet access will constitute an interference with his or her private life. I would say that this must extend to the accessing files which are situated, physically, on a server owned by another person, or company, which may choose to permit the access to the files. Cloud computing is becoming more common. Even today, many people keep private files, photographs, film etc. not physically on a computer located physically in their home, but on a server. This is safer in one sense, as the data cannot be accessed by another person, at least, by means of stealing the computer it is located on, and nor is it so vulnerable to fire and other accidents. It is also more convenient, as large amounts of data can be stored on the server and a person can access and work on the data wherever he or she is, e.g. an internet café. One can argue that, with any internet use, a person should have no legitimate expectation of privacy. Certainly, this is the case when a person chooses to put data – film, pictures, text etc. – on a public billboard, or site such as Youtube. Here the data has deliberately been made available to anyone who has access to the internet, and no special authority is required for the to make a copy of it (any more than such authority is necessary to photocopy a news- paper). I have not made an empirical survey of peoples subjective per- ceptions of privacy when they store data on private spaces on the internet. However, I suspect that most people believe that the in- formation they keep on a server is confidential. If a person com- plies with the contractual agreement with the company owning the server (e.g. not to store pornographic material etc.) then he or she almost certainly feels that s/he has a legitimate expectation of pri- vacy. The proof of this is that they are likely to react very nega- tively if the entity controlling the server disseminated this informa- tion to people other than those the person in question has autho- rized to access the data (e.g. outside the circle of friends in face- book). Personal data stored on servers may well be just as sensitive as other data, stored on ones own computer. Finally, an another argument for this approach is that the unauthorized accessing of such data belonging to another person, wherever held, is a criminal offence under Swedish law.97 It seems clear that to access such data also involves an interference with a persons private life. 6Level and type of regulation requirements set by the Courts case law on accordance with the law As already mentioned, the requirement under Article 8(2) that an interference be in accordance with the law is not purely formal. It relates to the quality of the law. In Klass v. FRG there was debate on this point, as the German law in question, the G10,98 provided for a relatively detailed system of restricted interferences, applicable in defined circumstances.99 In Klass v. FRG and a number of earlier Commission decisions, issues relating to the quality of law were considered as part of the question of the necessity in a democratic society of the measures. Most subsequent Court cases have, however, considered such issues under the heading of accordance with the law. The first telephone tapping case in which a violation of the accordance with the law requirement was found was v. UK. In this case the British legislation at issue simply recognised, but did not actually grant, the authority of certain government ministers to authorise telephone tapping. The practice was subject to self- imposed administrative restraints, some specific, some vague.100 The Court accepted the respondent government's contentions that the requirements of foreseeability must be lower in the case of secret surveillance. It obviously could not require that an individual know precisely when he or she would be subjected to surveillance, and so be in a position to adapt his or her conduct accordingly. Nonetheless, the Court stated that the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially 97Criminal Code chapter 4, section 9c. 98Gesetz zur Beschränkung des Brief-, Post und Fernmeldegeheimnisses (Gesetz zu Artikel 10 Grundgesetz), hereafter G10, 13 1968, BGBl. 1 S. 949. Each Land has its own G10 legislation (Ausführungsgesetze zum G10 Gesetz). The description of the federal control system given below is applicable mutatis mutandis to the Länder. 99Klass report para. 63, Klass judgment paras 43 and 45. 100See , 1986, pp. 126, 129. dangerous interference with the right to respect for private life and correspondence.101 It added that since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power.102 The Court proceeded to find that the British legislation on telephone tapping violated this requirement because it did not indicate with reasonable clarity the scope and of exercise of the relevant discretion conferred on the public authorities.103 The case led to the enactment of the UK of the Interception of Communications (IOC) Act 1985.104 In the British system at issue in it was a government minister who authorized telephone tapping, without any judicial involvement. However even systems where the judiciary have approved telephone tapping have been found on several occasions to violate the Convention. The first of these cases were Kruslin v. France105 and Huvig v. France106. The legal authority in French law for ordering telephone tapping (which was based on Article 100 of the Code of Criminal Procedure) was the subject of some dispute, but the Court was prepared to accept that there was a sufficient basis for this in French law, and that this practice was sufficiently accessible. But investigating magistrates had unlimited discretion to order telephone tapping. The Court found that this offended against the requirement of foreseeability, and that the practice was there- fore not in accordance with the law. Another example is Valenzuela Contreras v. which concerned a telephone tap placed on the applicant at a time when the only clear basis for this was the con- stitution. There was no implementing statute. While the judge ordering the surveillance had in fact attempted to minimise the inter- this would involve in the applicants private life, the absence of clear provisions setting out requirements equivalent to those laid 101Malone v. UK, para. 104This Act was an example of doing the absolute minimum necessary to comply with a Court judgment. When the UK incorporated the ECHR in its national law, meaning that the Convention compatibility of the IOC Act could be challenged before the British courts, it became a matter of urgency to replace it. This occurred in 2000, with the Regulation of Investigative Powers Act (). , A/176-A. , A/176-B. down in Huvig and Kruslin v. meant that the Spanish mea- sure was not in accordance with the law. The Courts case law on the requirement of legal foreseeability in this field is usefully summarized in its admissibility decision in paras 93–95 of and Saravia.107 .... foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the autho- rities are likely to intercept his communications so that he can adapt his conduct accordingly (see, inter alia, v. , 26 1987, A/116 para.51). However, especially where a power vested in the executive is exercised in secret, the risks of arbitrari- ness are evident (see, inter alia, , para. 67; Huvig, para. 29; and Rotaru v. No. 28341/95, para.55, ECHR 2000-V]). It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated (see v. Switzer- land, 25 1998, Reports 1998-II, pp. 542–43, para. Valenzuela Contreras v. , 30 1998, Reports 1998-V, para. The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see , ibid.; , para. Huvig, para. 29; and Valenzuela Contreras, ibid.). Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be con- trary to the rule of law for the legal discretion granted to the exe- cutive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such dis- cretion conferred on the competent authorities and the of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, , para. 68; , para. 51; and Huvig, para. 107 I have edited the excerpt. Similar recitations are found in , paras 75-77 and v. UK, para. For the requirement of accessibility, see the case, discussed below. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, para. 34; Amann, para. 76; Valenzuela Contreras, para.46; and Prado Bugallo v. , no. 58496/00, para. 30, 18 February 2003). Safeguards are necessary to ensure that the minimum standards of foreseeability set out above are complied with. the Court stated that in the context of secret measures of surveillance by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection against arbitrary interference with Article 8 rights The Court must be satisfied that there exist adequate and effective guarantees against abuse. This assessment depends on all the circum- stances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law.108 The Court has increasingly emphasized that there are two stages in the surveillance process, both of which must be subject to in- dependent controls. The first is the authorization and the second involves the actual carrying out of the surveillance, and/or the follow- up process when the surveillance has ended.109 In Klass v. FRG, the Court expressed a clear preference for a system of judicial control over the authorization process, stating that The rule of law implies, inter alia that an interference by the cit at para. 77 (references omitted). The last part of the quotation is a repeat of what the Court stated in Klass v. FRG, at para. 109See Iordachi, para. 42 and , para. executive authorities with an individual's rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.110 However, it went on to find that, as far as concerns strategic sur- veillance, that the G10 commission was a sufficiently independent control mechanism. In Popescu v. ,111 the Court considered that the Romanian authority which ordered the surveillance (the prosecutor) was not independent from the executive. It stated that the authorizing body must be independent and that there should either be judicial control or independent control over the issuing bodys activity.112 Although in there was supposedly supervision by a parliamentary oversight body, the Court considered this to be only in theory, not in practice and, in any event, of no relevance as a remedy, because the individual was never subsequently informed of the fact of the surveillance.113 The Court has stressed the need for statute law to govern large parts of the powers of secret surveillance. Case law, even where it lays down detailed standards and comes from the supreme, or con- stitutional court, is in itself not sufficient to regulate the area.114 Having said this, the legal framework need not be statutory. A degree of concretization of standards can be laid down in admini- strative regulations or authoritative case law.115 This provides a degree of flexibility, which is necessary when the legislator wishes to regu- late the area in a technique-neutral fashion (which in turn is moti- The Court continued in a field where abuse is potentially so easy in indi- vidual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (para. The nature of the Convention system means that the Court is limited to hinting to states not then before it that they would be advised to change unsatisfactory laws. As hints go, this is clear. 71525/01, . at paras 70-73. le contrôle du pouvoir législatif semblait plutôt théorique et, en tout cas, dépourvu d'effet pratique pour l'individu, dans la mesure où une personne mise sur écoute n'était pas censée prendre connaissance de l'existence de telles mesures secrètes à son égard (at para. 114See Heglas v. , op. cit, para. The Court had earlier accepted concrete rules laid down by the Constitutional Court in Valenzuela Contreras v. , para. 34 but this is no longer the case now. 115The Court went so far in v. to find that case law, doctrine or admini- strative regulations, as long as they are sufficiently well known, can diverge somewhat from the wording of the law, without this violating the Convention (25 1998, paras 59–60). However, bearing in mind the greater awareness the Court has shown in more recent cases of the need to minimize abuse in this area, I doubt if it would take the same approach today. vated by the need to avoid continual legislative changes to enable the to keep pace with new technology).116 It follows from the case law (e.g. the Klass and cases) that the demands of foreseeability are separate from the need for safe- guards, and remedies, even if the two sets of requirements are linked. The Court has putting an increased emphasis on safeguards presumably because it perceives that the list of factors to be set out in the statute will not in themselves serve to avoid abuse or overuse. For example, the requirement to set out the offences for which inter- ception of telecommunications is permissible is in itself not so strong a safeguard as it might appear.117 The definition of an offence is a matter for the national legislature. Within the weak limits of Article 7, an offence can be defined in relatively broad terms.118 A require- ment can be set in national law that a minimum penalty be applicable for an offence before telecommunications interception is available to investigate the offence. But this in itself is not a sufficient safe- guard either, if the national legislature considers that a large pro- portion of all offences come up to this minimum threshold.119 A statutory requirement that other methods of investigation are un- likely to be successful can in practice be taken seriously by the investigating and authorizing authorities, or be treated as a formality. Finally, the availability of telecommunications interception in practice is dependent upon both how the legislature frames the degree of suspicion necessary before the measure can be ordered, and how the investigating authorities and the authorizing bodies interpret this requirement. In Iordachi and Others v. ,120 the Court identified all of these problems.121 It expressed the view that tele- 116Cf Skyddet för den personliga integriteten Bedömningar och förslag SOU 2008:3 s. 203 En reglering bör vidare vara så teknikneutral som möjligt och undvika att söka uttömmande ange vilka metoder som avses. 117It should be added here that the Court accepts, for those states which have a separate civilian security service, without powers, that telecommunications interception need not be linked to a specific criminal offence (something considered in more detail below). 118As regards the relatively loose standard of law applied by the Court in the context of Article 7, see Cantoni v. , op. cit section 4, concerning the conviction of a super- market manager for unlawfully selling pharmaceutical products. 119A trend of increasing penalty levels, partly influenced by harmonization at level, can contribute to this. See, in particular, the Framework Decision on Com- bating Terrorism which, in some EU states at least, had the result of considerably increasing the offences for which special investigative measures could be ordered. 25198/02, 10 February 2009. 121It is made explicit that someone suspected of a serious, very serious or exceptionally serious offence risks in certain circumstances having the measure applied to him or her.Still, the nature of the offences which may give rise to the issue of an interception warrant is not, in the Court's opinion, sufficiently clearly defined in the impugned legislation. communication interception in was being heavily over- used and stressed that telephone tapping is a very serious inter- with a person's rights and that only very serious reasons based on a reasonable suspicion that the person is involved in serious criminal activity should be taken as a basis for authorizing it.122 A number of issues need more detailed treatment. As already indicated, one of these is concretizing the independent controls necessary in the follow-up stage, in other words, the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other par- ties; and the circumstances in which recordings may or must be erased or the tapes destroyed. The case law, particularly v. , and v. indicates that national law must provide adequate mechanisms for supervising what happens with surplus information. This issue falls largely outside the scope of the present report, and I havealso discussed it elsewhere.123 The case of v. UK124 stands in contrast to the critical approaches shown in cases.