PACE resolution and recommendation on mass surveillance

On the 21st of April the Parliamentary Assembly of the Council of Europe (PACE) has adopted a resolution regarding mass surveillance. The Assembly approved a draft resolution based on a report by the Dutch parlementarian Pieter Omtzigt (Netherlands, EPP/CD). The Assembly critisizes the endangering of human rights, the threats to internet security posed by the practices of intelligence agencies and the collection of massive amounts of personal data by private businesses.

The resolution states amongst other things:

4. The surveillance practices disclosed so far endanger fundamental human rights, including the rights to privacy (Article 8 of the European Convention on Human Rights (ETS No. 5)), freedom of information and expression (Article 10) and the rights to a fair trial (Article 6) and freedom of religion (Article 9) – especially when privileged communications of lawyers and religious ministers are intercepted and when digital evidence is manipulated. These rights are cornerstones of democracy. Their infringement without adequate judicial control also jeopardises the rule of law.

5. The Assembly about also deeply worried about threats to Internet security by the practice of certain intelligence agencies, disclosed in the Snowden files, of seeking out systematically, using and even creating “back doors” and other weaknesses in security standards and implementation, which could easily be exploited also by terrorists and cyberterrorists or other criminals.

6. It is also worried about the collection of massive amounts of personal data by private businesses and the risk that these data may be accessed and used for unlawful purposes by State or non-State actors. In this connection, it should be underlined that private businesses should respect human rights pursuant to the Resolution 17.4 on human rights and transnational corporations and other business enterprises, adopted by the United Nations in June 2011.

7. The Assembly unequivocally condemns the extensive use of secret laws and regulations, applied by secret courts using secret interpretations of the applicable rules, as this practice undermines public confidence in the judicial oversight mechanisms.

8. The consequences of mass surveillance tools such as those developed by the United States and allied services falling into the hands of authoritarian regimes would be catastrophic. In times of crisis, it is not impossible for executive power to fall into the hands of extremist politicians, even in established democracies. High-technology surveillance tools are already in use in a number of authoritarian regimes and are used to track down opponents and to suppress freedom of information and expression. In this regard, the Assembly is deeply concerned about recent legislative changes in the Russian Federation which offer opportunities for enhanced mass surveillance through social networks and Internet services.

9. In several countries, a massive “Surveillance-Industrial Complex” has evolved, fostered by the culture of secrecy surrounding surveillance operations, their highly technical character and the fact that both the seriousness of alleged threats and the need for specific counter-measures and their costs and benefits are difficult to assess for political and budgetary decision-makers without relying on input from interested groups themselves. These powerful structures risk escaping democratic control and accountability and they threaten the free and open character of our societies.

10. The Assembly notes that the law in most States provides some protection for the privacy of their own citizens, but not of foreigners. The Snowden files have shown that the United States National Security Agency (NSA) and their foreign partners, in particular among the “Five Eyes” partners (Australia, Canada, New Zealand, the United Kingdom and the United States) circumvent national restrictions by exchanging data on each other’s citizens.

11. The Assembly recognises the need for effective, targeted surveillance of suspected terrorists and other organised criminal groups. Such targeted surveillance can be an effective tool for law enforcement and crime prevention. At the same time, it notes that, according to independent reviews carried out in the United States, mass surveillance does not appear to have contributed to the prevention of terrorist attacks, contrary to earlier assertions made by senior intelligence officials. Instead, resources that might prevent attacks are diverted to mass surveillance, leaving potentially dangerous persons free to act.

The recommendation that was adopted says:

  1. The Parliamentary Assembly refers to its Resolution 2045 (2015) on mass surveillance and invites the Committee of Ministers to make use of the tools at its disposal to uphold the fundamental right to privacy in all member and observer States of the Council of Europe.
  2. In particular, the Assembly invites the Committee of Ministers to consider:

2.1. addressing a recommendation to member States on ensuring the protection of privacy in the digital age and Internet safety in the light of the threats posed by the newly disclosed mass surveillance techniques (see Resolution 2045 (2015), paragraphs 19.1 to 19.3);

2.2. further exploring Internet security issues related to mass surveillance and intrusion practices, in particular with regard to the human rights and fundamental freedoms of internet users;

2.3. launching an initiative aimed at negotiating an “intelligence codex” addressed to the intelligence services of all participating States, which lays down rules governing co-operation in the fight against terrorism and organised crime (see Resolution 2045 (2015), paragraph 19.4);

2.4. strengthening co-operation with the competent bodies of the European Union involved in negotiating trade and data protection issues with the United States and other third countries, with a view to bringing to bear the principles laid down in the European Convention on Human Rights (ETS No. 5) in the interest of all member States of the Council of Europe.

More information

The full announcement is to be found on the PACE website, together with additional information:

Over Ellen Timmer, advocaat ondernemingsrecht @Pellicaan

Verbonden aan Pellicaan Advocaten, http://www.pellicaan.nl/, kantoor Capelle aan den IJssel (Rotterdam), telefoon 088-6272287, fax 088-6272280, e-mail ellen.timmer@pellicaan.nl ||| Weblogs: algemeen: https://ellentimmer.wordpress.com/ ||| modernisering ondernemingsrecht: http://flexbv.wordpress.com/
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