Did European Court Just Outlaw “Massive Monitoring of Communications” in Europe? | Hacker News Reader

Did European Court Just Outlaw “Massive Monitoring of Communications” in Europe?

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262 pointsghosh40 comments

A great gesture, but sadly I'm sure all these national letter agencies will find a loophole in laws or pass some bills to push their agenda anyway. You know as a usual story goes -- "but terrorists!", "think of the children!" etc. Enforcing EHCR ruling was never a strong side, on the way of it becoming a national law (if ever), it often gets diluted or (purposely) misinterpreted.

And even if it does, even after clearly stating, that what they do/did is illegal, our national security agencies (BND in Germany) just go on doing their thing.

What our parliamentarian investigation committee keeps finding does nothing to stop these practices. And why should it - imho they (national security agencies and respective politicians) have clearly left the space of the law, as it does only apply to them on paper, not in reality.

I got cynical and fatalistic during the last years - and I do not see any real chance for a democracy left. We are living in post democratic times, where democracy is only there as a play being shown for the people, to keep them placated.

Sorry, for my mood.

> We are living in post democratic times, where democracy is only there as a play being shown for the people, to keep them placated.

Democracy has always been only a partial implementation of one. The Swiss come closest, every other so-called democratic country is so only in name and always has some provisions to limit the direct impact a vote can have on how society operates.

This has both good and bad side-effects, the bad ones seem to be the majority both in number and gravity. One large problem is that political systems are very slow to change once they are established, their founding documents take on some kind of religious aura and to question them and or those that laid them down is made tantamount to treason.

One large problem is that political systems are very slow to change once they are established

This is mostly a good thing. However, the boiling frog approach is still available. So society must be vigilant and vocal about every small step in the wrong direction.

Hopefully, this ruling will reinvigorate some of the debates. I know many defenders have become numb to the relentless attacks on individual freedoms (it can be seen in some of the comments here too).

I think it's more like a sawtooth curve. Some revolution takes place in a locality. Then, for a long time frustration with the system slowly builds until an overhaul is required, leading to a new point of very rapid change. This then plateaus at a level that fixes some of the old problems and therefore reduces the frustration levels to below where people pay a large amount of interest to the problems in the system.

Depending on the location and the amount of external influences this can happen every so many centuries or every couple of decades (or even years in extreme cases).

The essence of a real democracy is that I think that it forestalls any such desire to revolt in such a way that change is allowed to be gradually absorbed, rather than that it comes to a head, even if such change is perceived as 'unwise' it may be a better solution than to have a bunch of elders/wise guys/connected people to decide 'what is best for the masses'. Give them enough rope to destroy things and they may do so, or they may stop just short of doing it and learn from their mistakes. Take away their opportunity to do so and you get a sham democracy in return.

The problem with democracy is that, in any large group of people, a substantial number of them will be uninformed or even misinformed on particular topics that come up for discussion. And when people become misinformed, they can get entrenched in that view, believing that it is so self-evident that people who think otherwise have to be part of some vast conspiracy or just plain idiots because no one could be that stupid. And this almost comical misinformation transcends political lines: I can think of several examples on both the right (e.g., climate change) and the left (e.g., TPP).

Indeed, I think that the more critically-minded section of the population is, if anything, more prone to falling into this trap. I'm probably just as badly misinformed on some topics (although I don't know which ones--if I did, I wouldn't be misinformed!). I suspect that a large part of the cynicism comes from people who are merely unhappy that their minority (or what they see as the "silent majority") is not actually in agreement with the majority consensus.

Well spoken...it's a complicated world...

We all have to keep parsing information as best we can, knowing that it's impossible to keep abreast of developments in every field...makes you wonder about voting for candidates that offer simple solutions to complicated problems, no?

So they just ignore it? It seems like that would make legal matters really hard to understand.

Given that our Home Secretary recently stated that 'the UK does not undertake mass surveillance' to the investigatory powers government committee, I can't see this having any semblance of an effect (over here, at least).

I suspect the legal trick they'll rely on is: "we collect in bulk, but surveillance within that giant haystack of data is only ever aimed at particular persons. We don't want or use the totality of it, but we do need it so we can monitor retroactively."

Which I'd understand, but think they are throwing too much away in pursuit of too little. Still it's how they'll try and dodge. Well, that or "we don't need human rights anyway, can't make us, so neener neener."

Will be interesting how the recent monitoring at work judgement will interact with this.

Under subsequent cross-examination, she might state that they don't regularly weigh the whole national population.

It's a lie, and it's not even certain it's a legal lie until a court has ruled on it.

The UK executive may say whatever it wants, but if it's sued and the Court takes into account what the ECHR said (as it should), then it should lose.

I expect things like the USA government does, such as surveil you and then when you take them to court say that you don't have enough evidence/standing to prove they did anything. Intelligence agencies monitoring is almost impossible to show if they use techniques like parallel reconstruction.

Here's exactly what I was talking about:

http://www.theguardian.com/world/2016/jan/19/terrorism-act-i...

Unrelated, but it shows that the UK courts care about ECHR rulings. And the standing thing usually happens in the US, not in Europe. European courts rule a lot more on "principle" of doing something, and it matters less if the people accusing the state were involved or not. What matters is evidence that the government did or didn't do something (like mass spying), not whether John Doe was affected by it.

If mass spying is illegal under the European human rights laws, and the governments are found to have engaged in it then the only possible outcome is that they broke the law. Why should it matter if it affected this guy or that guy?

I really think the "no standing" excuse is a very poor one, as it effectively guarantees people have no redress against secret spying against them. That's not what a democratic country should be allowing.

There needs to be judicial redress for everything. Heck, I think the US is about to pass a law that gives EU citizens/foreigners judicial redress against US spying, but the Americans still won't get that. It just goes to show it is possible to have redress, it's just the powers that be don't want you to have it.

https://www.congress.gov/bill/114th-congress/house-bill/1428

https://www.congress.gov/bill/114th-congress/senate-bill/160...

Indeed. Take last years raid on the bank vault in London. Turns out they had full recordings on their calls. Whilst it did implicate them, how did they have them in the first place? And more interestingly, why to such quality.

From what I understand, they were bugged after the fact.

There is still a bit of a jump (how did they know who to wiretap? It wasn't really reported, afaik), but looking at the biographies of involved parties, they're the sort of people who would have been prime suspects anyway, so choosing to bug them was probably not an improbable decision to take.

They spotted one of them driving nearby in his own car.

http://www.bbc.co.uk/news/uk-england-london-35267787 about half-way down.

This will have an effect in the UK - it'll be used by the anti-eu lobby as ammunition, they'll paint it as "the EU is a terror state that supports terror and wants to give a safe space to terrorists and paedophile and bears, oh my!".

Mass Surveillance will grow in response, as the uk's logic will be that it's necessary because Europe don't do it.

I have seen anti-EU folks in the UK supporting the Polish governments attempts to limit press freedom simply because it was the EU that was complaining about it!

Forgive the nitpick, but it's an important distinction: this is the European Court of Human Rights, not the "Eu" [sic] court of anything. It is a separate institution from the EU and has non-EU adherents, like Russia for example.

Another point: the court has no enforcement mechanism. I suspect if all the major European powers disagree with one of its rulings, they will easily be able to flaunt it with impunity.

> Another point: the court has no enforcement mechanism. I suspect if all the major European powers disagree with one of its rulings, they will easily be able to flaunt it with impunity.

I don't think that is true. As it stand today, EU members are obliged to integrate these rulings into national law. It is one of the major nitpicks of the British Conservative party backbenchers, who wish to remove the United Kingdom from the "control" of the EHCR. This statement below sums it up better than I can:

> The Council of Europe has also made clear that the European Court of Human Rights, in Strasbourg, is not a substitute for national courts, but is subsidiary to national systems that safeguard human rights. The principles of law of the European Union, known as Community Law or European Union Law, also have direct effect in national courts, as European Union Law takes precedence over national law in EU member States. For these reasons, individuals and groups alleging violations of human rights provisions are required to first exhaust domestic remedies before a case can be considered admissible by a European tribunal.

http://www.stopvaw.org/enforcement_mechanisms_in_the_europea...

Yes, but it can take years before countries have to do anything. Ireland has often waited years before implementing rulings, (e.g. for decriminalisation of homosexuality)

Yet it is still better than nothing. After the ECHR decision, the citizens should be able to challenge laws that do not respect their rights, and the governments can't hide behind stupid reasons that ignore the ruling of ECHR.

Yes - and this is often the case. There has been cases where legal decisions in Ireland have been appealed to the EUCHR and the decision there has overruled the Irish one. For instance http://www.irishtimes.com/news/ireland/irish-news/european-c...

And countries will also try to weasel out of rulings on other countries (which apply pretty much verbatim to them) until the ECHR rules specifically against them[0] e.g. France asserting that Salduz v Turkey and Dayanan v Turkey (right to remain silent and to a lawyer from the earliest stages of even temporary custody) didn't apply to it because the rulings were against Turkey.

[0] or their supreme court tells the government to lay off the crack pipe

Russia is ahead of the UK on that one:

http://www.bbc.co.uk/news/world-europe-35007059

"Russia passes law to overrule European human rights court" because it ruled that Russian surveillance of newspaper editors was a human rights violation.

At least the violations are obvious when countries have to pass law to bypass this ruling.

The only ways to obligate a country to do something is to have other country willing to impose sanctions or war.

And no one is willing to do that inside or outside EU.

"EU members are obliged to integrate these rulings into national law."

No! Any court's mandate is to resolve disputes according to the existing laws. It is not to issue/create them. The lawmakers are the ones that may use the judicial system as a quality assurance mechanism for their adopted laws and maybe to consider fixing something along the way. A court is merely a hand of law, not a law maker. So, getting back to the European Court of Human Rights, there is a set of stipulations under the name of Human Rights that the adherent countries already endorsed and (supposedly) adopted into their national laws. There aren't any rulings to be integrated into national laws, there may exist only rulings (compatible with existing laws) that need merely enforcement on local level!

I believe post you're replying to is in fact correct. In cases when national laws are not compatible with ECHR rulings, the laws are the one to be changed (repealed or adjusted to match the ECHR interpretation).

We changed the submitted title from "Did the Eu Court of Human Rights Outlaw “Massive Monitoring of Communications”?", but not without sympathizing with the effort to get it down to 80 chars or less.

In the UK at least, ECHR is a fairly well known acronym - but I appreciate that might not communicate the story well to a broader audience.

Just a nit pick the correct name is the "European Court of Human Rights". It is not actually an EU court. Countries like Russia and I think Turkey are part of it and they are not EU.

https://en.wikipedia.org/wiki/European_Court_of_Human_Rights

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