The right to privacy is enshrined in the European Convention on Human Rights, article 8 [0].
It escapes me how politicians can repeatedly attempt to violate this.
[0] https://fra.europa.eu/en/law-reference/european-convention-h...
It escapes me how politicians can repeatedly attempt to violate this.
[0] https://fra.europa.eu/en/law-reference/european-convention-h...
Are we reading the same thing?
This linked statement clearly authorizes invasion of privacy by public authorities, in the name of any of the very vaguely listed reasons – as long as there’s some law to allow it.
https://en.wikipedia.org/wiki/Article_8_of_the_European_Conv...
>A 2014 report to the UN General Assembly by the United Nations' top official for counter-terrorism and human rights condemned mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions and makes a distinction between "targeted surveillance" – which "depend[s] upon the existence of prior suspicion of the targeted individual or organization" – and "mass surveillance", by which "states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites". *Only targeted interception* of traffic and location data in order to combat serious crime, including terrorism, is justified, according to a decision by the European Court of Justice.[23]
If a principle of the EU legal order is at stake, such as the right to privacy, then that constitutional imperative can very well override a new law.
The commission and parliament are well aware of this risk. They often choose to have laws advised on by the courts, in advance. To avoid a legal mess.
This is normal in a functional democracy. To avoid abuse of power / overreach by any institution.
I'm not happy with everything the EU does, but to call it useless is to be ignorant of the rest of the world.
>Article 8 de la Convention européenne de sauvegarde des droits de l'homme et des libertés fondamentales:
>Droit au respect de la vie privée et familiale
>1. Toute personne a droit au respect de sa vie privée et familiale, de son domicile et de sa correspondance.
>2. Il ne peut y avoir ingérence d'une autorité publique dans l'exercice de ce droit que pour autant que cette ingérence est prévue par la loi et qu'elle constitue une mesure qui, dans une société démocratique, est nécessaire à la sécurité nationale, à la sûreté publique, au bien-être économique du pays, à la défense de l'ordre et à la prévention des infractions pénales, à la protection de la santé ou de la morale, ou à la protection des droits et libertés d'autrui.
—
> Article 12
> Nul ne sera l'objet d'immixtions arbitraires dans sa vie privée, sa famille, son domicile ou sa correspondance, ni d'atteintes à son honneur et à sa réputation. Toute personne a droit à la protection de la loi contre de telles immixtions ou de telles atteintes.
And that's it, no other additions.
That's the key word.
ECHR court however can't repeal the law, only fine the governmemt for actual violation of convention rights.
I don't remember whether the EU top court can repeal EU laws, but general answer is no. It's politics -- if the government is full shitheads that somebody voted for and then haven't protested hard enough to boot out -- then they can ignore constitution, jail judges, behead journalists in a forest and send army to shoot at protesters of the wrong kind.
It seems axiomatic that legal systems contain provisions that prevent their violation. However, democracy requires that laws are voted on by elected representatives or plebiscites, which can of course mean repealing prior laws.
However the EU institutions are not sovereign, which might be the loophole here?
Edit: I'm aware that the EU is only afforded "competences" given to it by treaties, so perhaps human rights don't fall into any of these...?
However, I also wonder if legislation such as Chat Control, etc, might fall outside its competences.
In the end, the question is whether there is a legal mechanism by which the introduction of laws such as those in question here can be prohibited?
>Do EU treaties per se contain any language that might be relevant to privacy?
Doesn't matter really. No right in any treaty is absolute. Not even the right to life itself -- the police can and does shoot people and it's legal for them to do under specific conditions. And of course the chat control law says that whatever it is supposed to be doing should be done in the most privacy respecting way possible.
In theory the court (any court really) can weight whether the measures are proportionate and whether negative obligations (not invade privacy) are in a balance with positive obligations (you know -- protective children is also important) and whether the balance is appropriate of a democratic society.
The problem everybody is trying to not see - there is no right to E2E encryption under any law right now. There is no right to have a communication channel that government can't possibly listen to. It's not a thing. The same way there is no right to have your house unsearchable by police and your freedom unbound by a court that can jail you. There are strict limits when any of those things happen, but they do fact happen all the time for good reasons and for bad ones too.
Add: if I would attack it from a legal standpoint, I would not focus on privacy so much, but rather say that creating mass-scaning capability is a threat to the democracy itself.
However, mass surveillance cannot reasonably be held in balance with detection of crimes, as most people are not criminals
What I'm saying, is -- just because the balance isn't where you want it to be, and the policy is bad, that alone doesn't mean the law is unconstitutional, against the EU treaties or ECHR or should be impossible to pass through the legislative.
It's just bad because it's bad.
It is generally assumed that the ECJ has ultimate precedence over national constitutional courts, but I have my doubts. As a thought experiment, imagine it wasn't the EU, but the Chinese CCP with whom the treaties were concluded. It then quickly becomes clear why a national constitutional court fundamentally cannot accept the unconditional transfer of jurisdiction to a foreign entity.
The German Federal Constitutional Court (BVerfG) already stated in its judgment on the Public Sector Purchase Programme (PSPP) that it is prepared to intervene in the event of an exceeding of competences (ultra vires). Furthermore, the BVerfG has repeatedly defended the fundamental rights to privacy against the government in the past. I am relatively certain that the warrantless chat control would not succeed at the national level in Germany. The question is how the BVerfG will react if the ECJ gives the green light to chat control. As I said, I still have hope.
The ECHR itself is independent of the EU, it is national governments that have signed up to this treaty.
So perhaps the EU institutions do not need to directly refer to the ECHR, only national governments should???
.... It would be interesting to hear knowledgeable legal opinion in this!
Correct. EU is not a party of the convention, member states are, so EU law can be ruled on by ECJ and national law and actions of national governments by ECHR.
Then at the end of the day it's the national government that would look at your chats and "I'm just following EU law" would not be an especially great excuse for the ECHR court.
There is no penalty for doing so.
If something is outlawed but there is no negative consequence for doing it, then it’s not really outlawed in practical terms.
it escapes me hwo so many can be so naive.
The EU isn't really a state, though. The members are states, but not the EU.
EU law and its constitution have primacy.
But mostly, EU law just sets a baseline, and almost all execution of it is devolved to the member states.
Edit: the EU does not have a constitution but a constitution shaped update of the Treaties. Now, lots of politicians are happy to blame the EU for unpopular stuff, but the council is the national politicians and they basically run the EU.
The EU is not a state. Personally, I'd prefer a much more federal EU, but that won't happen anytime soon.
Especially the EU, with limited democratic oversight, does not have to be too concerned about things like this.
You make use of the silent assumption that politicians are not criminals. :-(
You want the police to solve crimes, right?
If you are against this it is because you have something to hide.
Also it is more than possible that those politicians do not agree with that Convention.