University of Amsterdam
Faculty of Law
International & European Law: Public International Law
"
Reports of my death have been greatly exaggerated."
-- Privacy
Article 8 and Data Sharing Surveillance: Are Privacy Rights
Sufficiently Protected?
Daniel Shaw
11315660
Table of Contents
Abstract... 1
Introduction... 1
1. Foreign Surveillance and the Jurisdiction of Strasbourg...6
1.1 Why is jurisdiction an issue?...7
1.2 Territorial jurisdiction... 8
1.3 The extraterritorial notion...11
2. Respect for Private Life and data sharing...14
2.1 An overview of data-sharing surveillance...15
2.2 Traditional obligations on transnational cooperation...20
2.3 Data-sharing: the new reality for transnational cooperation...25
2.4 Is a new approach needed?... 30
Concluding thoughts... 33
Bibliography... 35
Abstract
The 2013 revelations by Edward Snowden, which exposed the network of secretive government spying partnerships, has led to significant questions on the evolution of surveillance. Through the development of technological means to combat terrorism and crime prevention, the surveillance capabilities of States has increased dramatically. The European Court of Human Rights has established a clear view on the topic through its jurisprudence. However, with the revelation of States sharing data, the question arises whether the European Convention of Human Rights can offer sufficient protection when addressing interferences in private life, stemming from data sharing between States and transnational cooperation. This paper aims to examine the legal problems associated with data sharing between States, taking account of the traditional obligations entailed with transnational cooperation. The growth of the digital age, the development of surveillance methods and the effects on the concept of private life raise the question of whether the existing principles need to be reconsidered.
I am disturbed by how states abuse laws on Internet access. I am concerned that surveillance programmes are becoming too aggressive. I understand that national security and criminal activity may justify some exceptional and narrowly tailored use of surveillance. But that is all the more reason to safeguard human rights and fundamental freedoms. – Ban Ki Moon1
Introduction
The increasing developments in the world of Internet technology have led to our personal lives embodying a digital form. While the accessibility of this is encouraged and celebrated, the leaks by Edward Snowden on the surveillance operations of the US and the UK has demonstrated that our private life may not have the protection and security we are led to believe. It is now widely recognised that State security services, through the development of technology, have the ability to monitor private details of individuals without their knowledge.
1 UN Secretary-General, ‘Curtailing Freedom Does Not Preserve Order, But Undermines It’, transcript of video message to the fourth annual Freedom Online Coalition Conference: Free and Secure Internet for All, Tallinn, Estonia, SG/SM/15808, PI/2088, 29 April 2014.
Internet technology entails the ability of the Internet to transfer information and data through different services and systems. It is important in many industries because it allows people to communicate through means that were not necessarily available before, such as email and video calling. To illustrate how Internet technology is rapidly developing, social media offers a great example. Facebook, one of the biggest social media forums, states it has 1.86 billion active users as of December 2016 and of these active users, 1.74 billion access their Facebook account through their mobile, which is a form of technology that has also swiftly developed.2 In the period of 12
years since its release, nearly 30% of the world’s population has created an active Facebook account, suggesting that nearly 30% of the world publishes their daily activities through their Facebook account.3 This statistic is very likely to grow as
technology continues to develop and the Internet becomes more accessible worldwide.
Since 9/11, States are continuing to develop their approach to combating terrorism and crime prevention.4This has progressed on policies revolving data
communications.5 It can be said that 9/11 has been the ‘catalyst for the systematic
disregard’ of recognised rules on human rights.6 Even at the time of writing in 2017,
States are quickly passing surveillance legislation, which NGOs have held to be ‘disproportionate and discriminatory’.7 With the rapid development of Internet
technology, States have held it necessary to enact surveillance programs to gather and retain data.8 Arguably such an increase has been justified, given its crucial role in
2 "Company Info - Facebook Newsroom". Facebook https://newsroom.fb.com/company-info/
(accessed 18th April 2017)
3 "World Population Clock: 7.5 Billion People (2017) Worldometers". www.worldometers.info. (Accessed 18th April 2017)
4 Paul De Hert, Balancing security and liberty within the European human rights framework. A
critical reading of the Court’s case law in the light of surveillance and criminal law enforcement strategies after 9/11 (2005) Utrecht Law Review Vol. 1, Issue 1 pp 68-69;
5 Ian Hosein, The Sources of Laws: Policy Dynamics in a Digital and Terrorized World (2004) The Information Society, Vol. 2, Issue 3 pp 192-193
6 Phillipe Sands QC, Lawless World: Making and Breaking Global Rules, (Penguin 2006, London) p 21
7 Amnesty International EU: Orwellian counter-terrorism laws stripping rights under guise of
defending them 17 January 2017 https://www.amnesty.org/en/latest/news/2017/01/eu-orwellian-counter-terrorism-laws-stripping-rights-under-guise-of-defending-them/ (accessed 26 May 2017)
8 Joel R. Reidenberg, The Data Surveillance State in the United States and Europe (2013) Wake Forest Law Review Vol. 49 p 584
criminal investigations, which without data retention, might never have been solved.9
The benefit of modern techniques of investigations and identification has been recognised by the European Court of Human Rights (hereinafter ‘the Court’ or ‘Strasbourg’).10 However, activists have questioned the compatibility of such
programs with human rights, specifically the right to private life as, , codified in Art.8 of European Convention of Human Rights (hereinafter ‘ECHR’ or ‘the Convention’).11 The above quote by the current UN Secretary General illustrates
the growing concern about the evolution of surveillance programs, especially after the revelations in 2013.12
Surveillance can be defined as ‘the focused, systematic and routine attention to a
person’s details for the purposes of influence, management, protection or direction’.13
Surveillance is problematic in that although it can be a fundamental asset in preventing and detecting crime, it can diminish rights and reinforce divisions within society.14 For this thesis, the discussion focuses on Foreign Surveillance, which
includes interception of foreign communications and the sharing between two States of communication. This understanding is based on the 2013 leaks. The leaks revealed one particular program known as TEMPORA, which involved the storing of all Internet traffic entering and leaving the United Kingdom through the placement of data interceptors by the GCHQ on fibre optic cables. The majority of Europe’s outward Internet traffic is routed through the UK, as this is the landing point for the majority of transatlantic fibre optic cables. 15 This establishes the ‘foreign’ element of
9 Antonella Galetta, The changing nature of the presumption of innocence in today's surveillance
societies: rewrite human rights or regulate the use of surveillance technologies? (2013) European
Journal of Law and Technology Vol.4 No.2 p 8; European Commission ‘Frequently Asked Questions: The Data Retention Directive’ Press Release Brussels, 8 April 2014
http://europa.eu/rapid/press-release_MEMO-14-269_en.htm (accessed 18th April 2017)
10 S and Marper v. United Kingdom App nos. 30562/04 & 30566/04 (ECHR, 4 December 2008) §105
11 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, (hereinafter ECHR) 4 November 1950, ETS 5, Art.8
12 Julian Borger ‘GCHQ and European spy agencies worked together on Mass Surveillance’ The
Guardian (1 November 2013)
https://www.theguardian.com/uk-news/2013/nov/01/gchq-europe-spy-agencies-mass-surveillance-snowden (accessed 18th April 2017)
13 David Lyon Surveillance Studies: An Overview (Polity Press 2007, Cambridge) p 14
14 Nick Taylor State Surveillance and the Right to Privacy (2002) Surveillance & Society Vol.1, Issue 1 p 66
15 Ewen MacAskil & Others ‘GCHQ taps fibre-optic cables for secret access to world’s
communications’ The Guardian (21 June 2013) https://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world-communications-nsa (accessed 29th April 2017)
surveillance that forms part of the focus of this thesis; namely that Contracting States, such as the UK, are performing Foreign Surveillance activities through intercepting information that passes through its territory that does not necessarily originate from within its territory. This is elaborated through what we know about the impact of TEMPORA, in that it has been identified as making a ‘unique contribution’ to the NSA in providing insight into some of their high priority targets as it gives the NSA 36% of all raw information from intercepted computers.16 In reaction to the existence
of TEMPORA, the UK agencies (such as GCHQ) adopted the stance of ‘neither confirm nor deny’ in relation to the existence of the program.17 However, they did
claim that digital data must be collected in bulk in order for them to target particular persons of interest.
The leaks also brought to light another program, PRISM, which provided the NSA direct access to the systems of Facebook, Apple and Google within its territory.18 The
impact of Facebook has been highlighted but moreover considering Google is globally the most visited site, and Apple’s iPhone is one of the world’s most popular smartphones, this demonstrates the sheer magnitude and ability of the United States accessing data that this company collects its own citizens.19 Moreover, these
companies are global superpowers in technology and data communications and have international offices. This inevitably leads to a transnational scenario where Google collects data on British nationals in their London headquarters and sends it to their US office and through PRISM, the US now has direct access to data pertaining the British nationals. This illustrates an example of how States can collect and retain data that belongs to people outside its territory. In consideration of transnational cooperation, this presents a scenario where a Contracting State can request a Non-Contracting State 16 Nick Hopkins and others, ‘GCHQ: inside the top secret world of Britain’s biggest spy agency’ The
Guardian (1 August 2013) http://www.theguardian.com/world/interactive/2013/aug/01/gchq-spy-agency-nsa-edward-snowden (accessed 15th April 2017)
17 Richard Norton-Taylor ‘Why ‘neither confirm nor deny’ has become untenable for British spies’
The Guardian (15 July 2014)
https://www.theguardian.com/commentisfree/2014/jul/15/neither-confirm-nor-deny-british-spies-edward-snowden-revelations (accessed 20th April 2017)
18 Glenn Greenwald and Ewen MacAskill, ‘NSA Prism Program Taps in to User Data of Apple, Google and Others’ The Guardian (7 June 2013) http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data?guni=Art.8:in%20body%20link (accessed 18th April 2017)
19 Alexa ‘The top 500 sites on the web’ (as of 3 April 2017) http://www.alexa.com/topsites (accessed 21 April 2017); Forbes Jean Baptiste Su ‘Apple iPhone 6s Crowned World's Best-Selling Smartphone’ 7 September 2017 https://www.forbes.com/sites/jeanbaptiste/2016/09/07/apple-iphone-6s-was-worlds-top-selling-smartphone-last-quarter-report/#61d25c043f61 (accessed 21 April 2017)
to gather information on an individual or group within the territory of the Contracting State, who then receives the information and makes use of it.
The facts around the leaks raise two significant legal questions. The first question is how Contracting States are performing Foreign Surveillance activities through intercepting information that passes within their territory. It will be demonstrated in detail how modern technology allows States to carry out surveillance on individuals and communications that find them outside of their territory.20 The concept of
jurisdiction is significant here in that there is a question as for whether individuals, whose data is intercepted and collected by a State where they do not live or reside temporarily, are within the jurisdiction of that State within the sense of Art.1.21 If a
Contracting State is engaging in surveillance such as this the question then becomes whether the individuals are within the jurisdiction from a territorial view and if not, does this then concern the Contracting State’s extraterritorial obligations as the individual affected is outside the territory. These questions will be explored in chapter 1.
The second question focuses on the data-sharing element to surveillance and considers the scenario where a Non-Contracting State is performing surveillance on individuals in the territory of a Contracting State, which the latter requests. While this amounts to transnational cooperation, the discussion of interest is whether the traditional obligations pertaining to transnational cooperation are compatible with data-sharing surveillance given the protection afforded by Art.8. The Court has extensive jurisprudence on the substance of surveillance. This thesis aims to go further than this and explore whether data-sharing regimes, such as those revealed about the ‘Five Eyes’, affect the protection offered by the Convention. The specific threat of data sharing to Art.8 is heightened with technology rapidly developing. However, to understand obligations around transnational cooperation, which data-sharing arguably falls under, it is necessary to examine the established regime and 20 Glenn Greenwald No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (Metropolitan Books 2014, New York) p 112 – Greenwald details how the NSA only needs to obtain an individual warrant when it aims to specifically target a US citizen and that no special permission is required for obtaining the communications data of any non foreigner with US territory, even when they communicate with a citizen.
21 Art.1 of the ECHR states that parties to the Convention shall ‘secure to everyone within their
what the Court has held to understand whether data-sharing is compatible. This shall be examined in detail in chapter 2.
To be clear, these research questions are experimental. There has been an academic discussion on the topic matter of transnational cooperation and the effect on protecting human rights but at the time of writing, no specific judicial examination. The idea for this thesis came about from a grounded interest in human rights and in the influence that developing technology has on Convention rights such as private life. What this thesis aims to do is develop the discussion stemming from 2013 leaks. In examining the research questions above, reliance will be placed only on the Court and the Convention. Methodologically, this is because the Court has the most extensive jurisprudence on surveillance and is regarded as the ‘most effective regime in the world’ for the protection of human rights.22 However, it must be reiterated that
this is a completely new area and this thesis serves to contribute to the discussion. Regarding the relevant academic discussion, much of the focus will be placed on written work since 2013. Ultimately this thesis is intended to contribute to that growing discussion but at the same time attempt to be original in the idea.
1. Foreign Surveillance and the Jurisdiction of Strasbourg
The issue of jurisdiction arises due to new developments in technology that allow for the interception of surveillance, as evidenced by the UK’s use of the fibre optic cables that run below its seabed. It is relevant to the overall discussion stemming from 2013 leaks. Art.1 of the ECHR explicitly states that all States party to the Convention ‘shall secure to everyone within their jurisdiction the rights and freedoms’ expressed in the text.23 From a legal perspective, this jurisdiction question turns on whether a
Contracting Party engaged in surveillance of individuals outside its territory has obligations under Art.8. For this chapter, it is important to understand the facts that pertain to jurisdiction being an issue and this will be covered in Chapter 2.1 In order to understand whether the jurisdiction clause is satisfied it is necessary to examine the relevant jurisprudence of the Court. For this, chapter 2.2 will outline the approach by the Court to acts taking place within their territory while chapter 2.3 will focus on 22 Alec Stone Sweet and Helen Keller, ‘The Reception of the ECHR in National Legal Orders’ in A Stone Sweet and H Keller (eds), A Europe of Rights: The Impact of the ECHR on National Legal
Systems (OUP 2008, Oxford) p 3.
23 ECHR (n 11) Art.1
cases where the extraterritorial dimension to jurisdiction has been crucial. From this, it will be clear which form the possible scenarios fall under.
1.1 Why is jurisdiction an issue?
To understand why jurisdiction arises as an issue, it is important to take note of the factual scenarios. Much of this arises from the 2013 leaks and some are purely theoretical however it is entirely conceivable that such events may occur. Firstly let us consider the scenario where a State has legislated for surveillance activities and this involves the interception and extraction of any communications that come within the territory, even if they originate from individuals and organisations outside that State. The act is purely taking place within the State but this will cause interference to an individual’s Art.8 rights. Moreover, these effects still occur regardless of whether the subject is a foreigner or not physically on the territory of the State concerned. This distinction is important, as they may indeed be a national of the State conducting surveillance, but is in fact located outside the territory and this raises the issues of whether they are ‘within the jurisdiction’ of the intercepting State.24
To understand this, the facts pertaining to TEMPORA are highly relevant. The program stores Internet traffic entering and leaving the UK. Given that an estimated 10-25% of global Internet traffic moves through the UK via underwater fibre optic cables, it provides the UK with the ability to intercept and retain any information about individuals that may amount to interference under Art.8.25 In essence, what this
represents is the evolution of surveillance. We know States conduct mass surveillance of their own citizens.26 It would now appear, taking the example of TEMPORA, that
States have the means to expand their mass surveillance to foreign individuals when they intercept and retain communications.27
24 One factor to consider is that the individual is not a national of the intercepting State and a question could arise regarding nationality as to whether the same treatment carried out differs between
foreigners and nationals. If preferential treatment is made, then the issue of Art.14 arises however this will not be addressed in the discussion
25 David Anderson QC, A Question of Truth: Report of the Investigatory Powers Review (June 2015) Chapter 4, §4.13
26 An expanded definition of ‘Mass Surveillance’ can be found at Privacy International’s website
https://www.privacyinternational.org/node/52 (accessed 29th April 2017); More details can be found at
Amnesty International’s website Easy guide to Mass Surveillance
https://www.amnesty.org/en/latest/campaigns/2015/03/easy-guide-to-mass-surveillance/ (accessed 30th
Jurisdiction is interpreted primarily as being territorial but in exceptional circumstances, it can be applied in extraterritorial contexts where a State acts outside its territory. When jurisdiction arises as an issue, the Court may adopt a more conservative approach and will only extend jurisdiction where a State has exercised ‘effective control’ over a particular territory.28 In this instance, the territorial concept
of jurisdiction has been broadened to include when agents of a State act outside the territory but exercise control.29 Establishing jurisdiction of a Contracting State is a
threshold that must be satisfied before the Court can examine a complaint under the ECHR.30 However, the Court has been clear that the concept within the meaning of
Art.1 is not restricted to the territory of the Contracting State.31 Additionally, a State
can be accountable for violating Convention rights of individuals of persons who are in the territory of another State but are found to be under the violating State’s authority and control through its agents operating, lawfully or unlawfully, in the latter State.32
1.2 Territorial jurisdiction
A key question that has arisen in relation to the scope of jurisdiction under Art.1 is to what extent is a State accountable under the Convention, regarding its acts or omissions, which occur or have an effect outside of its territorial boundaries. Where the State intercepts communications, this is taking place within the territory and in essence, the act is taking place within the jurisdiction but produces effects outside. 33
This can also be understood where a German national communicates with a relative in the US. The communication is intercepted in the UK but the effects of the
27 Of course it must be remembered that TEMPORA is operated by the UK through the GCHQ, which is the security agency responsible for providing communications intelligence to the UK government.
28 Banković and others v Belgium App no 52207/99 (ECHR, 12 December 2001) §80
29 Al-Skeini and Others v UK App no 55721/07 (ECHR, 7 July 2011)
30 Milan Milanović, From Compromise to Principle: Clarifying the Concept of State Jurisdiction in
Human Rights Treaties (2008) 8 Human Rights Law Review Vol.8 Issue 3 p 416
31 Issa v. Turkey App no 31821/96 (ECHR, 16th November 2004) §68 32 ibid, §71
33 In the UK’s case, this when the GCHQ intercept communications carrying data from western Europe telephone exchanges and internet servers to North America travelling through fibre optic cables on British shores.
interference, with the individual’s rights, are outside the territory.34 There are two
keys cases that illustrate this and are therefore relevant to the discussion.
The first is the Bosphorus Airways case.35 While the case is notable for its
contribution to the discussion on the relationship between the obligations arising under European Community law and Convention Law, the focus on Bosphorus is purely for the factual situation and the discussion pertaining to Art.1. Briefly, the case concerns an aircraft, which was seized in Ireland. The aircraft was leased to Bosporus Airways, who were based in Turkey, from Yugoslav Airlines. Due to EC Council Regulation 990/93, sanctions were imposed against the then Federal Republic of Yugoslavia and Ireland took action in pursuant to the regulation. Bosporus Airways were then prevented from accessing their leased aircraft and took their complaint to the Court, having found little success in the Irish Courts and argued that the actions taken stood as an interference with their property rights covered by Art.1 of Protocol 1. The Court did not find a violation holding that Ireland had complied with its legal obligations flowing for Community law. From the discussion, here is a case where the State has allegedly caused an interference with the Convention rights of a group through an act in their territory that has an effect outside of their territory, given the complainant airline company was based in Turkey and had never entered Ireland’s territory.
With regards to the Art.1 substance of Bosphorus, the Court was brief in its assessment.36 Crucially it pointed out that Art.1 requires Contracting States to answer
for any interference with the rights contained in the Convention, committed against individuals placed under the Party’s jurisdiction. The Court noted that there was no dispute that the act implemented was done so by the Irish authorities on its territory and within the circumstances, the company as the victim of the interference fell within the jurisdiction of Ireland.37 What this demonstrates is that it is entirely possible to
establish jurisdiction through the acts of a Contracting State when causing an interference with the protected Convention rights of an individual or group outside the 34 Ian Brown & Douwe Korff, Foreign Surveillance: Law and Practice in a Global Digital
Environment (2014) European Human Rights Law Review Issue 3 p 247
35 Bosphorus Hava Yollari Turizm v Ireland App no 45036/98 (ECHR, 30June 2005)
36 ibid, paras 135-138
national territory. Going back to the example of the German national above, when his communications to the US are intercepted in the UK territory by the GCHQ, it is conceivable based on the Court’s analysis in Bosphorus that through this act the German national has come within the UK’s jurisdiction. Once this has been established, it can be argued that the UK has to respect his Convention rights.
The second case that illustrates the idea that territorial jurisdiction can apply when there are individuals are affected outside the territory of the State is the Von Hanover case.38 Here the dispute focused on Princess Caroline of Monaco and her complaint
regarding the publication in German magazines of paparazzi photographs of her eating in restaurants, spending time with her children and her on holidays. The important factor to consider for the discussion is that the Applicant photos were taken in France and published in Germany, she had never been in the territory of Germany. The Courts in Germany granted the Applicant an injunction restraining the publication of photographs where she appeared with her children on the basis that their need for protection of their intimacy was greater than that of adults. However the same did not apply to photographs of her in a public place, regardless of whether they showed her undertaking activities in her daily life rather or engaged with her official duties. This was because of the connection between press freedom and the public’s legitimate interest in someone such as the Applicant and her behaviour in public. The case went to the Court, where the focus was whether the decisions of the German Court interfered with the Applicant’s Art.8 right to respect for her private life. The Court ultimately held that the Applicant’s Art.8 right had been violated on with the decisive factor being the balance between protecting the Applicant’s Art.8 rights and the freedom of the press through Art.10.39 Ultimately they found the photos
did not concern the dissemination of ideas and constituted continual harassment. However, Art.8 was not relevant to this discussion.
The relevance of Von Hanover to this jurisdiction discussion is the facts of the case, in that a portion of the concerned photographs taken in France where the Applicant resides and then published in the magazines, based and distributed in Germany. So in effect, like Bosphorus the interfering State, which was Germany, took an act, which 38 Von Hannover v Germany App no 59320/00 (ECHR, 24 June 2004)
39 ibid paras 76-80
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had an effect on an individual’s rights outside of their national territory. What is also crucial to note, is the interference does not take place in France where the photos were taken but in Germany with the domestic court’s decision to refuse the Applicant’s injunction request. Unlike Bosphorus, the Court was not asked to examine the merits and a connection with Art.1, they chose instead to focus on the balance required on the relationship between Art.8 and Art.10 of the Convention.40
What these two cases demonstrate is that a State can be responsible for activities taken within its territory that will have effects on individuals or groups outside the territory and it is through the act, those individuals or groups fall within the jurisdiction. From this, it is clear that this idea of individuals affected outside the territory but within the jurisdiction of the interfering State can work within the Convention. This can validate any concerns about jurisdiction that arise from the evolution of surveillance as it can still be shown that interferences by a State can still fall within the concept of jurisdiction.
1.3 The extraterritorial notion
In chapter 1.2 the discussion focused on the notion of jurisdiction as primarily territorial. Taking the example of the German National, before it was hypothesised how his communication to the US was intercepted by the UK and how the act took place within the UK and therefore within the primary conception of jurisdiction as territorial. If this is not accepted then it is worth considering the extraterritorial application.
In order to understand the law around extraterritoriality, it is worth taking account of the facts that establish the extraterritorial notion. Taking the UK as the example, when they intercept the German national’s communications, they are bringing the German National within the UK’s domestic law and subjecting them to the UK legal system. This can be perceived as exercising a country’s jurisdiction.41 It can be asserted,
therefore, within the language of International Law, that a State is exercising both its legislative and enforcement jurisdiction over the data acquired or otherwise exercise control over personal data that is not held on its physical territory but on the territory 40 ibid paras 58-60
of another state. This can be asserted through using the physical infrastructure of the Internet and the global communications system to extract the data from servers, personal computers or mobile devices in the other state, or by requiring private entities that have access to such data abroad to extract those data from the servers or devices in another country and hand them over to the state, is bringing that data and the individuals or groups it pertains to, within its jurisdiction in the sense in which that term in the ECHR is interpreted by the Court from the ECHR.42
Such a state must, in this extraterritorial activity, comply with its obligations under those treaties. Jurisdiction is ultimately ‘a question of fact, of actual authority and control’ of a State over the territory where the alleged violation takes place. Following this, if a State intercepts data from a foreign territory, and retains it, then it is arguably asserting authority and control.43 To illustrate this through a practical example, if the
UK intercepts data travelling from France to the US via TEMPORA, the data from the French national comes within the jurisdiction of the UK at the point of interception. This appears entirely straightforward, yet untested.
In order to understand how extraterritorial obligations emanate it is worth considering the models of jurisdiction. The Court has applied these models regarding armed occupation. The Court made it clear in its Issa judgment that a State can be held accountable for the violation of Convention rights of persons who are in the territory of another State but who are found to be under the former State’s authority and control, which is established its agents operating in the latter State.44 In Al-Skeini, the
Court came to the conclusion that as an exception to the principle of territoriality, a State’s jurisdiction under Art.1 may extend to acts of its authorities, which produce an effect outside its own territory. Additionally, they held it is clear whenever the State, through its agents, exercises control and authority over an individual and therefore jurisdiction, the State is under obligations under Art.1 to secure Convention rights 42 ibid; alternatively it be asserted through requiring private entities that have access to such data abroad to extract those data from the servers or devices in another country and hand them over to the state
43 Marko Milanovic, Extraterritorial Application of Human Rights Treaties (OUP 2011, Oxford), p 53
44 Issa (n 31) §71 – The Court went further and asserted the basis for this reasoning, holding that “accountability in such situations stems from the fact that Art.1 cannot be interpreted so as to allow a
State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory”
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relevant to that individual.45 This is the Personal Model of jurisdiction demonstrating
how through exercising control and authority over individuals, a State has jurisdiction.46 Its application can be sufficiently broad enough to cover any human
rights complaint involving extraterritoriality.47
Another model to consider, the Spatial Model, differs in that it focuses on a State’s control over an area rather than an individual.48 As surveillance is focused on the
individuals rather than a specific space in the example, it is unlikely the model could apply unless it was established a State was conducting surveillance over an entire area. For any extraterritorial model of jurisdiction to apply, the State would have to be exercising control and authority outside of it national territory. In the context of intercepting data communication, the crucial factor to determine is where the State conducts surveillance activities. If the act originates from within its own territory, then territorial jurisdiction would apply. If it is conducted outside of its territory, then it can be argued the State is asserting jurisdiction extraterritorially so long as the elements, control and authority, are satisfied. However, it would be difficult for any State to conduct surveillance in another State without an agreement, as this would be breaching the sovereignty of the latter State. The reality of this will form a key part of the analysis in chapter 2.
Without specific case law to dissect and analyse, it is difficult to determine how the role of extraterritorial jurisdiction would apply with a State intercepting information. At a first glance, the example of the German National and his communications being intercepted by a foreign State does seem to indicate that extraterritorial jurisdiction would apply. However upon an examination of the established jurisprudence, with the crucial factor that the interception takes place within the territory of the second foreign State, it would appear that jurisdiction remains territorial in this instance. While the Court has been willing to extend the concept under the Convention outside the territorial boundaries of Contracting States, it must be remembered that any previous extraterritorial application has only been applied where the regulating State 45 Al-Skeini (n 29) §137
46 Milan Milanovic, Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age (2015) Harvard International Law Journal Vol.56, No. 1 p 117
47 Milanovic Extraterritorial Application of Human Rights Treaties (n 43) p114
has some authority or control over a territory or individual where the violation occurred and this has been limited to cases concerning deprivation of life and liberty.
2. Respect for Private Life and data sharing
In this chapter, the focus now turns to the discussion on the compatibility between data sharing and Art.8. This chapter will move to the second question of where a Non-Contracting State is performing surveillance and this information is then shared with a Contracting State. A hypothetical example could be the US carrying out surveillance on an individual or group in Germany and Germany then receives this information. They have not conducted the surveillance themselves but rather are relying on the information gathered by the US. If the US’s conduct would amount to a breach of Art.8, what obligations are imposed on Germany, as the receiving State in the matter? This scenario raises questions around the legal protection involved with transnational cooperation, specifically whether the traditional obligations in this area are compatible with the data-sharing surveillance regimes employed by States such as those within the ‘Five Eyes’.49 In terms of the structure of this chapter, it is important
to be aware of the relevant facts regarding surveillance and how the 2013 leaks have changed the outlook on what we now know as data-sharing. Chapter 2.1 will provide an overview of relevant facts regarding surveillance as well as the Court’s jurisprudence on the substance of Art.8. It is necessary to understand both to comprehend the new reality of surveillance. Chapter 2.2 will discuss the established ECHR approach on transnational obligations While the Court has not had the opportunity to examine data-sharing regimes, they have examined the cooperation between States where this is between parties to the Convention or between Contracting States and Non-Contracting States. The case law focused on the latter is of primary relevance. Chapter 2.3 will consider how data-sharing surveillance can affect transnational obligations. Chapter 2.4 will consider a new approach is necessary.
49 Paul Farrell, History of 5-Eyes—Explainer, The Guardian (2 December 2013)
http://www.theguardian.com/world/2013/dec/02/history-of- 5-eyes-explainer (accessed 20th April
2017)
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2.1 An overview of data-sharing surveillance
The data-sharing regimes between States we know exist have not received any judicial examination. The fact it has not been scrutinised by a judicial forum does not hinder the threatening nature it poses to private life. To understand this, it is worth examining the facts that form this version of surveillance. As mentioned in the introduction, two key surveillance programs were revealed in the leaks. PRISM provides the NSA with direct access to the systems of the largest technology companies, including Microsoft, Google, Facebook and Apple.50 It enables the
collection of data that includes search history, email content, the transfer of files and live chats. In the United States, companies are legally obliged to comply with requests for users' communications under domestic law, but PRISM allows the intelligence services direct access to the companies' servers. Additional documents show that the NSA retains captured data for almost two years.51 In litigation, the program has been
described as collecting foreign intelligence information under US Court supervision from electronic communication providers.52 From this, it is possible to construe a
scenario where the US requires T-Mobile to provide data on an individual in Germany. T-Mobile is German mobile communication company, which also provides services in the US. TEMPORA focuses on the placement of data interceptors by the UK’s GCHQ on fibre-optic cables located in the UK. These allow for transatlantic connections between the US and the European continent. Given that much of the Internet traffic passes through the UK, a large quantity of communications relating to the rest of the world is open for interception.53 TEMPORA gives GCHQ the largest
access out of the ‘Five Eyes’ group of countries and Snowden himself labelled them as worse than the US’s surveillance outfits.54
50 ‘NSA Prism Program Taps in to User Data of Apple, Google and Others’ (n 18)
51 Global Research Tom Burghardt, ‘Documents Show Undersea Cable Firms Provide Surveillance Access to US Secret State’ (18 July 2013) http://www.globalresearch.ca/documents-show-undersea-cable-firms-provide-surveillance-access-to-us-secret-state/ 5343173 (accessed 9th May 2017) 52 IPT Liberty and Others v GCHQ and Others [2014] UKIPTrib 13_77-H Judgment of 5th December 2014 §14
53 Each cable carries data at a speed of 10 gigabits per second and has the capacity to deliver more than 21 petabytes per day. To put this into perspective, one petabyte is one quadrillion bytes. The Guardian’s example is also worth acknowledging – it is the equivalent to sending all the information in all the books at in the British Library 192 times every day.
54 ‘GCHQ fibre-optic cables for secret access to world’s communications’ (n 15); Ilina Georgieva
The Right To Privacy under Fire – Foreign Surveillance under the NSA and the GCHQ and its Compatibility with Art.17 ICCPR and Art.8. ECHR (2015) 31(80) Utrecht Journal of International and
The data-sharing element to these programs is heightened with the connection to the ‘Five Eyes’. This is a historic arrangement from the second world war that governs the sharing of intelligence between the UK, the US, Australia, New Zealand and Canada.55 The original agreement was formed in 1946 and has continued ever since.
The leaks revealed the extent to which this arrangement has adapted intelligence-sharing activities in the digital realm of the Internet with the NSA found to be providing funds for GCHQ in exchange for access to their interception program.56
Additionally, it would appear that sharing is not just confined to the ‘Five Eyes’ as it has also been reported that other Contracting States such as Germany are establishing cooperation with the US for data exchange.57 This idea of Non-Contracting States
gathering surveillance on individuals in a Contracting State and then sharing that information with said State is not a revelation as a result of the leaks. It has been previously asserted that the NSA was ‘tapping’ UK phones at the request of MI5, which allowed British Intelligence to evade restrictions on domestic telephone tapping.58 Moreover, the leaks contribute to confirming the reality of data sharing.
Crucially, what the documents reveal is the possibility for surveillance of a country’s nationals and foreign citizens without any kind of ‘effective control or supervision’. The UK’s GCHQ can conduct surveillance on anyone but British citizens; the same goes for the NSA and Americans and Germany’s BND and German nationals. 59 The
leaks show this, in fact does happen but moreover, the cooperation poses a bigger threat.
Surveillance itself has a greatly established jurisprudence at Strasbourg. The revelations of data-sharing surveillance pose a new element and as of yet, untested. 55 Carly Nyst, The Five Eyes Fact Sheet, Privacy International (26 November 2013)
https://www.privacyinternational.org/node/51; Paul Farrell, History of 5-Eyes—Explainer, The
Guardian (2 December 2013) http://www.theguardian.com/world/2013/dec/02/history-of- 5-eyes-explainer (accessed 20th April 2017)
56 Nick Hopkins and Julian Borger ‘Exclusive: NSA pays £100m in secret funding for GCHQ’ The
Guardian (1 August 2013) https://www.theguardian.com/uk-news/2013/aug/01/nsa-paid-gchq-spying-edward-snowden (accessed 20th April 2017)
57 Der Spiegel, Spying Together Germany's Deep Cooperation with the NSA, 18th June 2014
http://www.spiegel.de/international/germany/the-german-bnd-and-american-nsa-cooperate-more-closely-than-thought-a-975445.html(accessed 13th May 2017)
58 Chris Blackhurst & John Gilbert ‘US spy base 'taps UK phones for MI5' The Independent (22 September 1996) http://www.independent.co.uk/news/uk/home-news/us-spy-base-taps-uk-phones-for-mi5-1364399.html
59 Der Speigel, How the NSA Targets Germany and Europe, 1st July 2013
http://www.spiegel.de/international/world/secret-documents-nsa-targeted-germany-and-eu-buildings-a-908609.html (accessed 7th July 2017)
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Briefly, before examining the compatibility of data-sharing surveillance with transnational cooperation under the Convention, it is worth acknowledging the Court’s view on surveillance. Art. 8 provides for the ‘right to respect for private and family life, home and correspondence’.60Specifically, within the context of
surveillance the right focuses on respect for the confidentiality of private information, which includes private correspondence.61 The Court has widened the definition of the
term ‘private life’ in that it protects all forms of communication, the home and sometimes business premises. Therefore the right covers a broader notion than just the home, which is best understood by the notion of private space.62 The Court has stated
that the protection of personal data is of fundamental importance to a person’s enjoyment of their Art.8 (1).63 Additionally, they have interpreted Art.8 (1) to include
technology as it develops.64 The Court has never given a definitive answer to what is
‘private life’ although it identifies surveillance to be a ‘menace’ that strikes at the freedom of communication as it allows the “interference by a public authority" with the exercise of the applicant’s Art.8 right.65 In relation to this, the Court has also
adopted a relaxed attitude towards its victim requirement. It now interprets the requirement to be satisfied if it is demonstrated that a framework for secret surveillance is in place and there is no judicial oversight to challenge.66
However, Art.8 is not considered an absolute right and interferences with an individual’s right to respect for their private life do not necessarily constitute a violation. Derogations are permitted under Art.8 (2) and allowed where the interference is (1) in accordance with the law and (2) necessary in a democratic society with a legitimate aim such as in the interest of national security, public safety or the economic well being of the country.67 The onus in establishing whether Art.8
60Art.8 (1) ECHR (n 11)
61 Anthony Lester QC, Five Ideas to Fight For: How Our Freedom is Under Threat and Why it
Matters (Oneworld London 2017) p 146
62 David Harris, Michael O’Boyle and Colin Warbrick, Law of the European Convention on Human
Rights (2nd edn, OUP 2009, Oxford) p 368
63 S.and Marper (n 10) §41;
64 See Copland v. the United Kingdom App no 62617/00 (ECHR, 3 April 2007) §41 - the Court held that where telephone calls are prima facie covered by notions of private life and correspondence, logically emails are similarly protected as should information derived from the monitoring of personal internet usage
65 Klass and others v. Germany App no 5029/71 (ECHR (Plenary), 6 September 1978) §41
66 Roman Zakharov v. Russia App no 47143/06 (ECHR 4 December 2015) paras 167-169
has been interfered with lies with the Applicant, at which point it shifts to the State to establish that the interference complied with the requirements of Art.8 (2).68
On the substance of Art.8 the Court has held that where surveillance legislation is too vague or ambiguous, it is not ‘in accordance with the law’ and therefore constitutes a violation. While the requirements do not specifically have to be statutory law, they have to be sufficiently accessible and foreseeable.69 There must also be adequate and
effective guarantees against abuse through the use of judicial authorisation.70 This
view has been consistently maintained and demonstrates the value the Court places in the importance of the law, even on matters entangled with secrecy, being accessible for the public to engage with.
The Court has also taken the view that where secret surveillance is concerned limitations have to be in place to allow for a review of such acts.71 The Court has
interpreted Art.8 (2) to permit secret surveillance activities so long as it is established as being ‘strictly necessary for safeguarding democratic institutions’ and ‘there must
be adequate and effective guarantees against abuse’. Further Contracting States enjoy
a certain margin of appreciation for assessing the existence and extent of such necessity, subject to European supervision.72 In assessing the necessity, the Court
grants Contracting States a margin of appreciation.73 This affirms the deferent role the
Court adopts as it recognised that State authorities are better placed to determine whether there is a great social need on the issue.74 The Court has affirmed that States
are afforded a wide margin when it comes to the protection of national security and the use of intercepting telephone communications falls within this.75 The State
ultimately has the onus of establishing the necessity of the interference and must 68 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (n 62) p 397
69 Leander v. Sweden App no 9248/81 (ECHR, 26 March 1987) §67; Bykov v. Russia App no 4378/02 (ECHR, 10 March 2009) §76
70 Roman Zakharov (n 66) paras 232-234, 236
71 Bykov (n 69) §78
72 Kennedy v UK App no 26839/05 (ECHR, 18th May 2010) paras 153-154
73 Buck v. Germany App No 41604/98 (ECHR, 28 April 2005) §44; Keegan v. United Kingdom App No 28867/03 (ECHR, 18 Jul 2006) §31; Bernh Larsen Holding AS and others v. Norway App No 24117/08 (ECHR, 14 March 2013) §158
74 Lorena Bachmaier Winter, ‘The Role of the Proportionality Principle in Cross-Border
Investigations Involving Fundamental Rights’ in Stefano Ruggeri (ed), Transnational Inquiries and the
Protection of Fundamental Rights in Criminal Proceedings - A Study in Memory of Vittorio Grevi and Giovanni Tranchina (Springer 2013) pp 92-93
75 Weber and Saravia v. Germany App No 54934/00 (ECHR, 29 June 2006) §105
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demonstrate that there is a ‘pressing social need’ for the interference with an individual’s Art.8 right.76
The Court’s view on surveillance is well established. What the jurisprudence demonstrates is a judicial forum that is firstly, highly critical of surveillance and secondly, willing to extend the protection of Convention on such a matter. This will be notable in a forthcoming case, Big Brother Watch v UK, currently pending before the Court as a result of the 2013 leaks. 77 Here, the applicants are three NGOs and one
academic working internationally in the fields of privacy and freedom of expression that allege they are likely to have been the subjects of surveillance by the United Kingdom intelligence services.78 Their concerns were triggered by media coverage
following the 2013 leaks and their complaint focuses on whether the acts of the UK’s intelligence services were ‘in accordance with the law’ and ‘necessary in a
democratic society’. Furthermore, they have submitted that there is no basis in
domestic law for the receipt of information from foreign intelligence agencies and an absence of legislative control and safeguards. This stems from their claim that the UK can request foreign intelligence agencies to (1) intercept communication and (2) give access to the UK to analysis, disseminate and store this data. The case has not progressed since being lodged in 2013, with its most recent update being the Court asking questions to the parties focusing on the victim requirement and whether domestic remedies have been exhausted.79
The Court has not examined the changing reality presented by data-sharing surveillance. It may have the opportunity in Big Brother Watch however the discussion now turns to the compatibility of data-sharing surveillance with the traditional obligations of transnational cooperation. It is not necessary to examine the 76 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (n 62) p 407
77 Big Brother Watch and Others v. the United Kingdom App no 58170/13 (Communicated on 9 January 2014)
78 For more on this case please see the Joint Application submitted by the Applicants to the Court -
https://www.privacynotprism.org.uk/assets/files/privacynotprism/496577_app_No_58170-13_BBW_ORG_EP_CK_v_UK_Grounds.pdf
79 The last communication took place in 2014; The requirements are stipulated in Art.34 and Art.35 of the ECHR. The Court has significant jurisprudence on the issues of victim requirement and the exhaustion of domestic remedies. It is not the aim of the thesis to discuss these issues however the issue of victim requirement within this context has been relaxed since Roman Zakharov and the Court has, in exceptional circumstances, looked passed the requirement of exhausting domestic remedies if it is established that they do not provide an effective remedy.
compatibility of data-sharing surveillance with Art.8, as its substance is of little difference to the complaints of surveillance the Court has already received. What poses a threat is the manner and conduct in which States act.
2.2 Traditional obligations on transnational cooperation
New modes of cooperation strategies have emerged through the development of strategies for mutual legal assistance worldwide with the emergence of an unprecedented mode of transnational collection of evidence by joint investigation teams.80 With these new developments, new methods of investigation with the aim of
speeding up the exchange of data, information and evidence have emerged due to the rapid technological and scientific advance. While this has contributed to the enhancement of international cooperation, the significant growth of investigative measures has imposed on the rights of individuals involved in these procedures and this includes suspects, victims and witness.81 Moreover, the technological
developments have contributed the investigative measures in two ways. This is by providing new forms of intrusive investigation such as online search and allowing for both direct and reciprocal access to national databases through the use of new technologies, making national systems of telecommunications services accessible to foreign authorities by means of service providers and others.82
To understand how the obligations interlinked to transnational cooperation it is worth taking account of four key models of international assistance. The most common and dominant model is known as the Rechtshilfe model. This is where a State receives a request for assistance from another State and decides whether to provide assistance based on its own national discretion. The second model is similar but differs in that the wide margin of appreciation of the requested State is strongly reduced or even abandoned. Under this second model the requested State is obliged automatically to execute the other State’s request but unlike the first model, the State issuing the 80 Stefano Ruggeri ‘Transnational Prosecutions, Methods of Obtaining Overseas Evidence, Human Rights Protection in Europe’ in S. Ruggeri (ed) Human Rights in European Criminal Law: New
developments in European Legislation and Case Law after the Lisbon Treaty (Springer International
2015, Switzerland) p 148
81 ibid, p 149
82 Richard Vogler ‘Tranantional Inquiries and the Protection of Human Rights in the Case-Law of the European Court of Human Rights’ in Ruggeri (ed), Transnational Inquiries and the Protection of
Fundamental Rights in Criminal Proceedings - A Study in Memory of Vittorio Grevi and Giovanni Tranchina (Springer 2013) p 34
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request has no authority over the requested state. The latter remains responsible for its actions while applying its own laws. In a third model, the powers of the requested State are delegated to the requesting State to operate within the framework of the foreign laws. Under the fourth model, this is where the requested State permits the State seeking assistance to investigate directly on its territory. It has no say over the foreign authorities acting on its territory and effectively loses control over its territory, where foreign officials act with foreign competences, applying foreign laws.
A data-sharing surveillance agreement would is conceivable under the first model. The application of the model is broad enough to cover cooperation between Contracting States and Non-Contracting States. An illustrated hypothetical example could be where the US receives a request for assistance from the UK on a suspect within its territory and requests the US to carry out surveillance on the individual. Once this operation is complete, the UK then requests the US to send the information to the UK so they can carry out their investigation. The second model does not apply because with transnational cooperation between Contracting States and Non-Contracting States, the terms of the cooperation would be dictated by an agreement rather than an established regime by the Court, as they would only have jurisdiction over States that are a party and have ratified the Convention. The third model appears to be difficult to comprehend with data-sharing surveillance as it dictates a scenario where the powers of the requested State are assigned to the requesting State to work within a framework of a foreign land. The example of the US and the UK data-sharing scenario could fit into the fourth model. The UK, as the requesting State, is permitting the US to investigate directly on its territory. It is likely that the UK will have little authority over the foreign agents and could lose control of its territory but we know the GCHQ and the NSA have a working relationship which allows members of the other agency to access its ally’s database.
To understand whether the obligations stemming from transnational cooperation are compatible with data-sharing surveillance, it is necessary to take account of the Court’s jurisprudence. While much of it focuses on cooperation between Contracting States, there are cases where the facts concern the involvement of a Non-Contracting State. In the current climate of transnational cooperation, mutual trust stands as essential. Treaties that deal specifically with cooperation serve as the basis of such
trust but also treaties such ECHR. The logic to this being that the Convention offers a broad-spectrum of guarantees for human rights protection in the party states, where the authorities in one state do not need to check the human rights situation in another party state in individual cases of cooperation.83 However, this would only apply to
Contracting States as they have effectively all agreed to the protection of Convention rights.
The Court’s jurisprudence has developed the obligations necessary in transnational cooperation with a Non-Contracting State. In Soering the Court held that the UK would violate its Convention obligations if it allowed the requested extradition of Mr Soering to the US where he was likely to suffer inhuman or degrading treatment contrary to Art.3.84 This was because the UK would have knowingly exposed the
applicant to a real possibility of experiencing the death row phenomenon.85 What Soering demonstrates is the possibility for a State to be responsible for a breach of the
Convention where its actions could lead to a possible future infringement. Up until this point, the Court did not hear cases about future violations but held that the serious and irreparable consequences of the UK’s extradition forced it to change. However, the Court’s jurisprudence on transnational cooperation can show a conflicting view. Alternatively an example of where the Court emphasises the importance of cooperation is in Rantsev v Cyprus and Russia, where the Court held that failure to take advantage of the opportunity to obtain extraterritorial evidence could in itself amount to a procedural breach of the Right to Life in Art.2. They indicated that States must take the necessary and available steps to secure relevant evidence, whether or not it is located in the territory of the investigating State.86 This case concerned a
Russian woman who had gone to work as an artiste in a cabaret in Cyprus. Three weeks later she was found dead.87 Although the focus on this case was on Art.2 and its
83 Aukje A.H. van Hoek & Michiel J.J.P. Luchtman, Transnational Cooperation in Criminal Matters
and the Safeguarding of Human Rights (2005) Utrecht Law Review Vol. 1, Issue 2 p 3
84 Soering v UK App no 14038/88 (ECHR, 7 July 1989) – The Applicant claimed his extradition would lead to a violation of Arts 3. & 6. He was expected to face the death penalty for the crimes he had committed. The Court specifically stated the use of the death penalty itself did not violate the Convention as the Convention does not govern the standards and actions of States not party.
85 ibid § 98-99; This is where there is a prolonged period of time on death row characterised by mounting anguish at the inevitable demise of the individual.
86 Rantsev v Cyprus and Russia App no 25965/04 (ECHR, 7 Jan 2010) §241
87 The complaint arose around the suspicious circumstances around the woman’s death where, even though an autopsy was carried out when the body was returned to Russia, the Cypriot authorities came to the conclusion it was accidental and held there was no need for a prosecution.
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procedural requirements, it raises the question of what happens where there is a conflict in transnational cooperation, between obtaining extraterritorial evidence and the protection of Convention rights.
This conflict became apparent in Chinoy v UK; a case that depicts a scenario of data-sharing however, in this case the European Commission rather than the Court made the decision. However both the facts and the decision can be said to foreshadow the current discussion, only the sharing has been revealed to be more frequent. before the European Commission rather than the Court but wholly relevant to this discussion. The case demonstrates the obligations related to obtaining tape recordings from another State that are in breach of Convention rights.88 Here authorities from the US
had intercepted telephone conversations for the Applicant’s home in France. The US had waited until he travelled from France to the UK where he was arrested the subjected to extradition proceedings under the US-UK extradition treaty. Recording of the conversations was used as evidence during his extradition proceedings in the UK.
In his complaint of a breach of Art.8, the Applicant submitted expert evidence demonstrated that (1) the investigation in France was carried out without the knowledge of French, breaching sovereignty and without resort to procedures governing mutual assistance and (2) the actual recording of the conversation constituted offences in the French Criminal Code. With the case being brought against the UK, it was held that complaint was manifestly ill founded. This was due to the finding that the UK was not at all responsible for the actual collection of evidence and their responsibility was engaged when the evidence was used in the extradition hearing. This contributed to the finding that Art.8 not breached by the UK Additionally the finding was based on a weighing of interests with the importance of international cooperation in the campaign against drug trafficking taking precedence. Here we have a clear scenario where the UK receives surveillance conducted by the US, which falls within data sharing surveillance. The Commission made it clear that Art.8 was not breached, even when the UK used the recordings in the applicant’s extradition hearing. They held its responsibility could only arise from the use of 88 Chinoy v UK App no. 15199/89, Commission applicability decision 25 June 1991
evidence rather than the actual collection. Applying this approach to sharing between a Contracting State and Non-Contracting State does not bode well for holding States to the Convention accountable.
The use of evidence acquired in a foreign state gained subsequent developed in
Echeverri Rodriguez v. the Netherlands, this time at the Court.89 This case concerned
illegal telephone taps that have been made in the US and then used in Dutch criminal proceedings. The Dutch Courts relied on the rule of non-inquiry and refused to assess the collection of the evidence. This rule allows a court in one country to refrain from an investigation into legal matters of another country as international cooperation is part of criminal policy and is dealt with by the executive and therefore, as a rule Courts do not entertain questions concerning whether the acts of foreign authorities are legitimate.90 The Court accepted the Dutch Court’s line of reasoning and held that
questions concerning the admissibility of evidence are primarily a matter for national law regulation and that the task of the Court is to determine whether the proceedings as a whole, including the way in which the evidence was taken, was fair. The Applicant did not complain of interference with his Art.8 rights and therefore the Court did not examine whether the use of evidence in the trial amounted to a violation. Much like Chinoy, the Court held that the Convention allows for the use of evidence obtained by foreign investigating authorities and that subsequent use at trial could raise issues under the right to a fair trial protected by Art.6, although the Applicant bears the burden of proof in substantiating such a claim.
As demonstrated in Rantsev, the decisions in Chinoy and Echeverri Rodriguez demonstrate the Court’s enthusiasm for encouraging mutual cooperation in transnational inquiries. This strong position indicates that a public policy interest overrides concerns about breach of human rights except in the most flagrant cases.91
Additionally, the Court was clear in Rantsev that failure to take advantage of an opportunity to obtain extraterritorial evidence could in itself amount to a breach of convention rights. While this was specifically for a procedural breach for Art.2 it 89 Echeverri Rodriguez v. the Netherlands App no 43286/98 (ECHR, 27 Jul 2001)
90 Van Hoek & Luchtmann (n 83) p 2;the basis of this rule s in extradition law but is now used in other forms of international cooperation. It rationale is structured as a direct effect of the division of power between the executive and the judiciary, such as seen in the US and the UK.
91 Vogler (n 82) p 40
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raises concerns over whether Court can remain effective in protecting human rights in transnational cooperation if it is willing to hold State responsible should they not take advantage of obtaining foreign evidence.
2.3 Data-sharing: the new reality for transnational cooperation
With a clear idea of the Court’s view on transnational obligations, it is worth examining whether the established approach is effective for data-sharing surveillance. It must be reiterated that there is little to substantiate a clear answer to this question and much of the analysis will be theoretical and experimental. The Court has a developed a consistent record within their surveillance jurisprudence in finding judgments that protect the aims of the ECHR. Similarly, they have refused to accept violations, which could lead to an abuse of Convention’s aims. This is where the conflict could arise. With a vulnerability for those facing international investigations and this poses whether it is necessary for a compliance regime with higher standards of protection of human right within cross border criminal investigations than those available.92
Overall, what the cases discussed in chapter 2.2 demonstrate is that Convention rights such as Art.8 may not receive sufficient protection in transnational cases. For any complaint of Art.8, being able to substantiate information is crucial. Facts are needed to (1) substantiate the allegation that a violation of Convention rights has taken place and (2) to determine the responsible State however in cases of mutual assistance, it may be difficult to trace the source of information and this brings difficulty in asserting rights under Art.8.93 Generally speaking and not referring to any scenario,
the main responsibility of the requested State should be to ensure that the measure it is asked to perform is legitimate and proportionate.94 In order to carry this out,
information will be required as to why the requested State is needed to carry this surveillance out. Furthermore, in criminal matters the focus should be on the crime 92 Stefano Ruggeri, ‘Transnational Inquiries and the Protection of Fundamental Rights in
Comparative Law. Models of Gathering Overseas Evidence in Criminal Matters Rights’ in Ruggeri (ed), Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings - A
Study in Memory of Vittorio Grevi and Giovanni Tranchina (Springer 2013) pg 536
93 Van Hoek & Luchtmann (n 83) pg 20
