a) Legal basis
b) Legitimate aim
c) Necessary in a democratic society
Phone interceptions are used across Europe to fight crime and to avert dangers to state security. They take two forms: Individual monitoring targets a specific person or groups of persons, or aims at intercepting communications from and to a specific set of premises or phones. Strategic monitoring is the process of intercepting a large number of communications and screening them for certain cue words or key phrases.
The European Convention on Human Rights does not prohibit phone interceptions; the European Court of Human Rights has acknowledged that the fight against certain types of crimes requires surveillance of telecommunication. Several Conventions of the Council of Europe – the body under whose auspices the European Court of Human Rights operates – expressly recommend the use of special investigative measures such as phone tapping. The Council of Europe Criminal Law Convention on Corruption recommends to signatory states to adopt ‘such legislative measures as may be necessary (….) including those permitting the use of special investigative techniques’ to facilitate the gathering of evidence and confiscation of proceeds’ (para 23). The explanatory report to this Convention clarifies that ‘this provision includes an obligation for the parties to introduce special investigative techniques’ such as ‘ wire tapping, bugging, interception of telecommunications’ (para 114)
While the European Court of Human Rights acknowledges that phone interceptions are an important and sometimes necessary tool to fight terrorism and other forms of grave crime, it has also pointed to the risk of arbitrariness involved in the use of measures which are usually employed without the affected person noticing it. It has therefore developed in its jurisprudence a number of safeguards which are to protect individuals against arbitrary interferences with their fundamental rights. The Court scrutinizes these safeguards in the context of the justification of the interference with the right to private life and correspondence, to which phone interceptions amount.
While many of the landmark judgments specifying rules and requirements for phone interceptions concerned individual monitoring, the European Court of Human Rights has underscored that the principles set out in its jurisprudence also apply to strategic monitoring. The methods employed to ensure an adequate level of protection against arbitrariness may be different in the context of individual monitoring and strategic monitoring, but the level of protection achieved has to be the same.
2) Interference with the right to respect for private life and correspondence
Tapping phone conversations and recording them interferes with the right to respect for private life and the right to respect for correspondence (Liberty and others v United Kingdom para 63). The right to respect for correspondence extends to phone conversations, too (Kennedy v. UK para 118; Iordachi v Moldova para 29). Therefore, legal persons can invoke the protection of article 8 ECHR against phone interceptions, even though they do not have a private life.
When examining the compliance of phone interceptions with article 8 ECHR, the Court usually does not differentiate between interferences with the right to private life and the right to respect for correspondence. Rather, it states that both rights are interfered with and scrutinizes for both rights jointly whether the interference is justified. (Dumitri Popescu v Romania; Versini-Camphinci und Crasnianski g. Frankreich para 49).
An interference with the right to private life and correspondence is not only constituted by recording phone conversations or taking account of their content. The ‘metering’ and registration of so called meta-data interfere with rights to private life and correspondence, too. The same holds true for the transfer of data regarding telecommunication to intelligence services of foreign nations (Weber and Saravia v. Germany para 84). The European Court of Human Rights has not yet decided whether receiving data from foreign intelligence agencies has to comply with article 8 ECHR. The British Investigatory Powers Tribunal which scrutinizes measures related to covert surveillance has held that article 8 ECHR in principle applies in that situation; it stated, however, that not the same safeguards were required since the intrusion is less intense.
Interferences with rights enshrined in article 8 ECHR have to be justified. They have to
- Be in accordance with the law
- Serve a legitimate interest
- Be necessary in a democratic society
Intially, the European Court of Human Rights scrutinized the safeguards against arbitrary interferences with the right to respect for private life and correspondence which have to be in place in the frame of the legal basis of the interference ; in more recent judgments it has discussed them jointly with the requirement that the interference be necessary in a democratic society (see the Grand Chamber judgment in Roman Zakharov v Russia para 36, Kennedy v United Kingdom (para 155).
a) Legal basis for phone interceptions
The interference has to be ‘in accordance with the law’. This requires that
– There be a basis for the phone interception in domestic law
– The law the interference on which the interference is based be accessible to the public
– The circumstances of interferences be foreseeable
The provision or law forming the legal basis for the interference has to be publicly accessible (Malone v UK para 66,; Roman Zakharov v Russia para 228). Everyone must be able to inform him- or herself under which circumstances the surveillance of telecommunication is possible. In Liberty v The United Kingdom, a British human rights organization claimed that the Government Communications Headquarter conducted mass surveillance of telecommunication between Ireland and the United Kingdom. It purported there was no sufficient legal basis for the surveillance.
The law applicable at the material time provided that the home secretary could issue a warrant ordering the surveillance of communication. The warrant had to contain specifics of the type of communication to be intercepted. In addition to that, the home secretary had to issue a ‘certificate’ describing criteria according to which the intercepted. The law provided that the home secretary made appropriate arrangements to ensure that intercepted material was only used as described in the warrant and that data was only stored and transferred to the extent necessary. The home secretary issued internal guidelines and instructions in that regard.
The European Court of Human Rights found a violation of article 8 ECHR. It pointed to the fact that the guidelines were not accessible to the public and that it was consequently not foreseeable for individuals to what extent surveillance was possible. It concluded that the legal basis for the interference was not sufficiently accessible.
In Roman Zakharov v. Russia, the Grand Chamber of the ECHR held that the requirement of public accessibility is satisfied when parts of the relevant regulations can be viewed on the page of a private company providing information on laws. The regulation pertaining to the technical equipment which was used to intercept phone calls had been contained in a separate by-law. This by-law had not been published in the official gazette or been available via other official sources. However, a journal dealing with telecommunications had published it. A private company offering legal information through a website had published the relevant article (para 242 of the judgment)
In addition to being accessible, the law on which the interference with the right to private life is based has to be sufficiently clear and precise to make the interference foreseeable (Kruslin v France para 30; Huvig v France Rn 32). This is a general principle which applies to all legal provisions forming the basis for interferences with rights enshrined in the European Convention on Human Rights. It holds particularly true for legal provisions permitting the interception of telecommunication, as the secrecy of the measure renders it difficult for affected individuals to seek legal protection and entails the risk of arbitrariness (Valenzuela Contreras v Spain para 46).
Foreseeability (of course) does not imply that individuals should know beforehand that their communication will be intercepted (Szabo and Vissy v Hungary para 62). It means that it must be possible to foresee in which circumstances the surveillance of phone conversations can take place (R.E. v United Kingdom para 122). Individuals must be able – if need be with appropriate legal advice – to foresee in which cases phones may be tapped (Weber and Saravia v. Germany para 93; Rotaru v Romania para 55).
c) Legitimate aim
The interception of telecommunication has to serve a legitimate aim. States usually rely on national security, public safety and the prevention of crime to defend mass surveillance. In general, the European Court of Human Rights accepts this justification without detailed analysis (Klaas and others v Germany para 44; R.E. v United Kingdom para 119). It accords signatory states to the ECHR a wide margin of appreciation as to the measures they see fit to achieve national security, public safety and other aims listed in article 8 para 2 ECHR (Dumitri Popescu v Romania para 68; Klass v Germany (para 49). The requirement of a legitimate aim is therefore usually not problematic in cases concerning phone interceptions.
c) Necessary in a democratic society
The interception of telecommunication has to be necessary in a democratic society. This requires that the interference is proportionate in view of the aim to be achieved with it. Since the surveillance of telecommunication is carried out in secret, the risk of arbitrariness is particularly high. Therefore, the legal framework governing phone interceptions has to contain safeguards which limit interferences with the right to respect for private life and correspondence and ensure their compliance with the rule of law. Minimum safeguards developed in the jurisprudence of the European Court of Human Rights include
– Details on the nature of the offences whose investigation/prevention may require phone interceptions
– Details on the duration on surveillances
– Categories of persons affected by phone interceptions
– Details on the examination, storage and destruction of data obtained
– Details on the transfer of data to third parties (Association for European Integration and Ekimdzhiev v Bulgaria para 76; Kennedy v UK para 152; Weber and Saravia v Germany para 93-94, Prado Bulgallo v Spain para 30)
If the law grants discretion to a judge or another official deciding on whether to order phone interceptions, it has to clarify the scope of that discretion and according to which criteria it has to exercised so as to protect individuals against arbitrary interference with their rights (Roman Zakharov v Russia para 230; Weber and Saravia v Germany para 94; Valenzuela Contreras v Spain para 60, Bykov v Russia para 78).
There has to be effective control ensuring that the safeguards against arbitrary interference with the right to private life and correspondence are abided by. This control has to extend to all phases of the surveillance, i.e.
– The authorization
– The implementation
– The handling of the data after the termination of the surveillance
Authorization of phone interceptions
According to the European Court of Human Rights, judicial authorization is the preferable option to ensure that powers of surveillance are not abused (Klass g. Germany para 56; Roman Zakharov v Russia para 233). However, other forms of control may suffice to ensure protection against arbitrariness, in particular in the area of strategic surveillance (Weber and Saravia v Germany para 115; Roman Zakharov v Russia para 258). At any rate, the body vested with the authority to authorize the surveillances has to independent. (Iordachi v Moldova para 40; Dumitri Popescu v Romania (no.2) para 70. Independence requires, firstly, that the person authorizing the interception does not work with the body carrying it out (Association for European Integration and Ekimdzhiev v Bulgaria). Therefore, the European Court of Human Rights did not consider it in compliance with the Convention in Association for European Integration that it was the Minister of Interior who was commissioned to ensure that the applicable laws were adhered to by employees of the Ministry. In Iordachi v Moldova, the Court based its finding of a violation of the Convention inter alia on the fact that the Prosecutor General or one of his deputies were in charge of controlling phone interceptions (para 47).
Other factors the European Court of Human Rights considers when assessing independence is the qualification of persons deciding on phone interceptions and the procedure of appointing them. In that vein, the Court regarded it consistent with the Convention that the authorizing persons are members of parliament, provided that member of the ruling party are represented as well as member of the opposition. The Court also accepted persons qualifying for judicial office appointed by parliament or the head of government (Klass and other v. Germany para 21 and 56; Weber and Saravia v. Germany para 24,25; Kennedy v UK para 57).
Regardless whether judicial authorisation is required, the ECHR permits an interim authorization of surveillance short-circuiting the usual procedure. In that case there have to safeguards in place which limit the interference and prevent misuse of the authority to allow phone interceptions on an interim basis.
A requirement for judicial authorization can only be effective if the competent judge is supplied with all necessary information and material (Roman Zakharov v Russia para 261).
Control while the surveillance is carried out and after its termination
The protection of the public against unlawful interception of telecommunication must not be limited to control during authorization of the interception. It has to be ensured by an independent body in the implementation phase that the authorities or bodies carrying out the interception do not exceed their competences and respect the limitations set out by law (Association for European Integration and Ekimdzhiev v Bulgaria para 84 ff). Regarding the independence, the same considerations apply as with respect to the authorization. The competent bodies have to have access to all relevant information and documents; this has to be accompanied by a duty on other state institutions to proffer the necessary information (Roman Zakharov v Russia para 281).
Finally, effective control has to be exercised after the termination of the surveillance. It has to ensure that the regulations regarding the storage of data obtained, their protection, their transfer and destruction are adhered to.
Protection of privileged conversations between attorney and client
The laws and regulations governing the surveillance of telecommunication have to contain mechanisms which are designed to guarantee that conversations between attorneys and clients protected by professional secrecy are not intercepted or filtered out following their interception. Article 8 ECHR protects the secrecy of all communication between individuals; the exchange between an attorney and his client enjoy particular protection, as lawyers would not be able to defend their clients without the possibility to communicate with them confidentially (R.E. v United Kingdom para 131; Michaud v France para 117). In Kopp v Switzerland the European Court of Human Rights found a violation of article 8 ECHR because it was incumbent on an employee of the post office who had to decide what conversations were covered by attorney-client privilege (para 74). The Court did not consider this an effective mechanism to ensure that privileged conversations were protected. In Iordachi v Moldova, the law provided that conversations between an attorney and his or her client were not to be intercepted. However, the European Court of Human Rights pointed to the fact that there were no provisions whatsoever governing how to ensure that privileged conversations were not intercepted or how to proceed in case they had been intercepted.
Not all conversations between attorneys and clients enjoy special protection. Attorney -client privilege embraces only conversations which regard the client’s defence or representation. If a client’s phone is tapped and therefore a conversation with his lawyer is intercepted which does not regard the client’s representation, it does not breach article 8 ECHR to use the intercepted conversation in disciplinary or criminal proceedings against the attorney (Versini-Campinchi and Crasnianski v France para 79).
Privilege does not apply to all legal professions; for example, it does not extend to conversations between a judge and a citizen. If such a conversation is registered since the citizen’s phone is tapped, the judge cannot invoke article 8 ECHR if the record of the conversation admitted into evidence in disciplinary proceedings against him for breach of professional secrecy (Terrazoni v France).
Circumstances triggering surveillance
The law has to clarify the circumstances which may justify phone interceptions. In the area of criminal investigations, that implies that the categories of offences the suspicion of which may trigger the surveillance of communication has to be clearly specified. It is not required that the law contain a complete list of all qualifying offences (Roman Zakharov v Russia para 247; R.E. v United Kingdom para 132); it is sufficient if the law defines the relevant offences by referring to the punishments they entail (‘all crimes carrying a minimum sentence of.’). A general description of qualifying crimes may suffice, too. In Kennedy v UK, the European Court of Human Rights held that it was sufficiently clear that the interception of telecommunication was allowed to avert dangers for national security and to investigate serious crimes. The Court stated that the term ‘national security’ was employed in the Convention itself; since British law provided a more detailed definition of the term, it was sufficiently clear (Kennedy v UK, para 159). The European Court of Human Rights also considered it sufficiently clear that laws allowed phone interceptions to avert terrorist attacks and to protect citizens who were in emergency situations abroad (Szabo v Hungary para 64).
However, specifying the criminal offences fit to trigger phone interceptions does not only serve to make interferences with the right to private life foreseeable; it also has the objective to limit interferences. Thist means that the overall number of offences which may give rise to phone interceptions has to be small enough to protect individuals against arbitrary interferences effectively. In Iordachi v. Moldova, the Moldovan criminal procedure code contained a precise definition of the offences for whose investigation phone interceptions were permissible. The ECHR based its finding of a violation of article 8 ECHR inter alia on the consideration that the relevant offences amounted to more thatn 50% of all criminal acts set out in the Criminal Code (para 44).
Categories of persons affected
The law providing the legal basis for phone interceptions has to specify which categories of persons may be affected by surveillance of their telecommunication. This requirements overlaps with the requirement of a sufficiently clear indication of the circumstances able to trigger surveillance – setting out the suspicion of which offences may provide grounds for phone interceptions also implies that the interception can target persons suspected of being involved in such offences (Szabo and Vissy v Hungary para 66). If the category of potentially affected persons defined via a criminal offence, the law may also permit the interception of persons not suspected of involvement in the offence but deemed to have information leading to the identification of perpetrators.
Still, the law has to limit the number of persons affected by phone interceptions effectively. In Szabo v Hungary, the law provided for the interception of phone calls to avert terrorist acts and to assist Hungarian citizens in emergency situations abroad. The competent body had to request authorization of a Minister; the request had to set out the persons or categories of persons whose phones were to be tapped. In this context, the law did not require any reasoning as to why the persons named in the request were targeted. The European Court of Human Rights pointed out that virtually everybody’s phone could be tapped on the basis of these provisions. It found a violation of article 8 ECHR.
The European Court of Human Rights is of the view that the duration of the phone interception has to be foreseeable. It has dealt in various judgments with the maximum periods of time for the surveillance of telecommunication set out in the laws of different states (see for example Weber and Saravia v. Germany, where the Court considered a maximum duration of three months with a possibility to renew the authorization once in compliance with the Convention).
However, it the Court does not appear to require that the law indicate a maximum duration of the measure. It has held that it could be left to the national authorities to determine the maximum duration of phone interceptions. It has to examined regularly, though, whether the requirements for phone interceptions continue to exist; also, there must be clear rules governing the prolongation or termination of the phone interception (Roman Zakharov v Russia para 250).
Handling of data obtained
The law has to make provision where and how the data obtained are stored, how their integrity is protected, when they are deleted and what measures are taken to ensure that they are actually deleted, who can access the data and to whom and under what circumstances they may be transferred.
Information affected persons after termination of the measure
The mere fact that persons whose phones have been tapped are not informed during or after the termination of the matter does not render the interception unlawful (Weber and Saravia v. Germany para 98; Klaas and others v. Germany para 57). Affected persons should be informed, though, as soon as this is possible without putting the goal of the phone interception in peril (Association for European Integration and Ekimdzhiev v Bulgaria para 90, Weber and Saravia v Germany para 135