Mobile phones, internet usage, social media, messaging, app stores and even dating services – legislation enacted in Russia over the last five years has ensured that users’ data concerning most forms of communication is now more easily accessible to state authorities on request. Is such a high level of state surveillance compatible with human rights standards on individuals’ right to privacy?
In December 2015, the European Court of Human Rights ruled that Russian legislation on surveillance did not “provide for adequate and effective guarantees against arbitrariness and the risk of abuse which is inherent in any system of secret surveillance”. Noting that the interception of communications by governmental bodies is necessary in certain circumstances, including in the interests of national security, the Court identified areas in which the legal framework was either unclear or in violation of the right to respect for private life of the European Convention on Human Rights (Article 8 ECHR). Yet since then, a further raft of measures have been implemented which actually extend the powers of the state. This includes the so-called ‘Yarovaya law’, a package of amendments to legislation in the name of counter-terrorism which require telecommunications companies to store user data and make it available to Russian law enforcement upon request, without the need for a court order.
Last week, EHRAC, Memorial Human Rights Centre (Moscow) and Citizens’ Watch (St. Petersburg) submitted an update to the Council of Europe’s Committee of Ministers providing information on these legislative developments in Russia, since the Court’s judgment in the aforementioned case, Zakharov v Russia (litigated by EHRAC and Memorial HRC). We request that the Committee require the Russian Government to institute specific reforms which would create checks on power and limit the potential for abuse, as well as making the laws more transparent, including to:
- Amend the technical specifications of the system for surveillance to ensure that the State agent in charge of surveillance is required to produce a court order to the service provider;
- Remedy the legislative shortcomings identified by the European Court in Zakharov, putting in place safeguards to protect against arbitrary surveillance or data storage;
- Explain how it will ensure that courts comply with the European Convention on Human Rights provisions on privacy so that interceptions are legal.