Limiting mass surveillance

Can states use the need for ‘national security’ to justify mass surveillance? Do we, as citizens, need to prove our own communications have been monitored to argue that legislation permitting surveillance is a violation of our rights?

Order no. 70 of the Russian State Committee for Communications and Information Technologies, issued in 1999, required phone companies to install equipment that would allow the state direct access to their networks.

In 2003, Roman Zakharov, the editor-in-chief of a Russian publishing company, and Chair of the Saint Petersburg branch of the media freedom NGO Glasnost Defence Foundation, brought legal proceedings against three mobile network operators, the relevant ministry and the Russian spy service, the FSB. His claim of a breach of his right to privacy was rejected by the Russian courts.

The case

In 2005, working with Russian partner lawyers, we took Roman’s case to the European Court of Human Rights (ECtHR).

In December 2015, the Grand Chamber of the ECtHR found that the Russian legislation had resulted in a violation of Roman’s right to private and family life. The judgment highlighted that, even though he was unable to claim that he had been the subject of surveillance, the very existence of the legislation amounted to an interference with his rights. The ECtHR found that the Russian legislation on surveillance of mobile telephones failed to provide for ‘adequate and effective guarantees against arbitrariness and the risk of abuse.’

The refusal by the Russian authorities to confirm whether Zakharov had been subject to surveillance limited his ability to challenge this in the domestic courts – the ECtHR judged this as a failure to provide an effective remedy.

What this litigation achieved

The Zakharov judgment had significant consequences for state surveillance across the member states of the Council of Europe.

It was published a month after the UK Government’s Draft Investigatory Powers Bill. As the privacy campaigner Matthew Rice noted at the time:

‘The implications of this judgment go beyond Russia. Other European countries have introduced laws or are considering legislation that do not pass the tests of legality, necessity and proportionality set out by the European Court. In the UK, the review of the Investigatory Powers Bill would benefit from considering the Zakharov judgement… Part 6 of (the Bill) would struggle against the clear standard communicated by the Court for interception authorisations.’

Matthew Rice in Open Democracy