A European Perspective on Privacy and Mass Surveillance at the Crossroads

Abstract

This article concentrates on two recent judgments issued by the European Court of Human Rights (ECHR) Chambers, on Centrum for Rattvisa v. Sweden and Big Brother Watch and Others v. United Kingdom, which expressly acknowledged that mass surveillance per se does not violate the Convention on the Protection of Human Rights and Fundamental Freedoms. These judgments have been recently referred to the Grand Chamber, thus giving hope that the approach taken in respect of the launch of mass interception of communications and metadata has a chance to be revisited. The author reveals whether this approach follows from the jurisprudence of the ECHR, how plausible the argumentation of this court is and how legalization for the bulk interception of data relates to the stance taken by the ECJ, which until that time was dealing with questions of the protection of the right to respect for private life and personal data using the general paths initially paved by the ECHR. The article discloses what precise content in terms of the protection of right to respect for private life lies behind the main findings on the compatibility of bulk interception per se with the Convention on the Protection of Human Rights and Fundamental Freedoms, namely, in which part this court has refused to examine the measures undertaken by states in compliance with Article 8 and in which parts it has strengthened (or relaxed) already inferred criteria. Finally, taking into account the current position of the ECHR at this crossroads, the article dwells on causes that influenced the decisions of its Chambers.