Tele2 & Watson: What now? European Criminal Law Association IALS 7 February 2017 Angela Patrick, Doughty Street Chambers

The CJEU – In good company? Strict necessity: Szabó and Vissy v. Hungary (Application no. 37138/14), 12 January 2016; [72] – [73] Targeting/Limiting surveillance to serious crime: Roman Zakharov v Russia (Application no. 47143/06), 4 December 2015; [243] – [249]; Szabó [67] – [68]. Judicial oversight: Szabó, [74] – [81]. Notification: Szabó,[86], Zakharov, [287]; Weber & Savaria, Application no. 54934/00, [135]. (Cf: Kennedy v UK App No 26839/05)

Privacy – In good company? “Given the potential interferences with email, mobile phone and internet services as well as those of mass surveillance attract the Convention protection of private life even more acutely” “[the] menace of surveillance necessarily strikes at freedom of communication between users” Szabó, [53]

Privacy – In good company? “It would defy the purpose of government efforts to keep terrorism at bay, thus restoring citizens trust in their abilities to maintain public security, if the terrorist threat were paradoxically substituted for by a perceived threat of unfettered executive power intruding into citizen’s private spheres by virtue of uncontrolled yet far-reaching surveillance techniques and prerogatives.” Szabó, [68]

Nothing new – In good company? “[P]owers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.” Klass (1978) 7 2 EHRR 214, [36], [41].

Nothing new – In good company? “The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism adopt whatever means they deem appropriate”. Klass (1978) 7 2 EHRR 214, [49].

CJEU – In good company? European Parliament Resolution Post-Snowden, 12 March 2014 (“Condemns the vast and systemic blanket collection”) UN General Assembly Resolution 68/167 on The Right to Privacy in a Digital Age (2014) (“Deeply concerned” “the collection of personal data, in particular when carried out on a mass scale”); UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (2013) UN Special Rapporteur on Counter-Terrorism (2014) UN Special Rapporteur on Privacy (2015), (2016) Concluding Observations of the Human Rights Committee on the UK’s 7th Periodic Report (ICCPR), 17 August 2015, CCPR/C/GBR/CO/7 [24] (“Most serious crimes” and “judicial authorisation”.)

The UK – with previous form? Khan v UK (Police Act 1997) Malone v UK (Interception of Communications Act 1985) Harman & Hewitt v UK (Security Service Act 1989) Halford v UK (RIPA 2000) Tele2 Sverige & Watson (????????)

Implications for the ICA 2016 The headline: Are “Bulk” and thematic powers insufficiently targeted/incompatible with the strict necessity test? Retention notices (Sections 87 – 89); Access to communications data (Sections 61 – 86); Purposes (Section 61(7), 87); Oversight of retention and access; Notification (Section 231, Error Reporting).

Is it all about Brexit? Roman Zakharov v Russia (Application no. 47143/06), 4 December 2015; Szabó and Vissy v. Hungary (Application no. 37138/14), 12 January 2016 (see [70]; protection may need to be enhanced to deal with digital profiling “particularly invasive”); Big Brother Watch and others v UK, App No 58170/13; 10 Human Rights Organisations v UK, App No 24960/15; Bureau of Investigative Journalism & Alice Ross, App No 62322/14.

Is it all about Brexit? Equivalence and adequacy; For example, see EU-US Privacy Shield (Implementing decision, 12 July 2016 C (2016) 4176 final); Implementation of the new General Data Protection Regulation confirmed in February 2017 by Minister for State Matt Hancock MP; will take effect May 2018.

Comprehensive, comprehensible and world-leading Over to the domestic courts (Watson returns; Liberty crowd-funding for litigation); Time for more surveillance reform anyway (Pitchford)? A new international dialogue on digital rights, surveillance and privacy? (see International Principles on the Application of Human Rights to Communications Surveillance (Privacy International)) Global leadership from the UK?