Upping the Ante on Bulk Surveillance

Unprecedented public debates about intelligence governance following the revelations of Edward Snowden have not changed the fact that all major democracies allow their national intelligence services to intercept communications data in enormous quantities. Many people question the efficiency of bulk surveillance practices and their compatibility with fundamental rights. Others worry about its effect on the social fabric of democratic societies.

Yet, the fact is that most parliaments have expanded, rather than curtailed, surveillance powers in recent intelligence reforms. What is more, the European Court of Human Rights recently upheld the Swedish regime for bulk interception of foreign communications and called the practice a «valuable means» of counterterrorism in its Big Brother Watch decision of September 2018. Therefore, one can assume that the practice of bulk communications surveillance is here to stay. If that is the case, then it is high time to subject national legal frameworks and their corresponding oversight systems to a comparative review and to identify good practices. National courts and the European Court of Human Rights, alike, have frequently admonished national governments for flaws or shortcomings in the oversight regime. In the September 2018 decision, the European Court of Human Rights again demanded more rigorous andeffective oversight mechanisms.

Yet, especially as surveillance technology is rapidly evolving, what exactly constitutes effective oversight of bulk collection in actual practice? A court will not design new rules or prescribe specific accountability mechanisms. This is the difficult and necessary work of democratic governance, and it needs to be done by the principled members of the different oversight bodies that understand the critical importance of their work.

This study presents individual examples of legal provisions and oversight practices that, by comparison, stand out as more balanced or more innovative responses to the many thorny challenges that ought to be met. The resulting compendium features a wide range of high-water marks from different national surveillance regimes. It shows that each nation – despite constitutional and political differences, and irrespective of individual reform trajectories – has a lot to learn from its international partners. These practices, we believe, should be widely promoted, for they increase the legitimacy and effectiveness of a controversial practice that is here to stay.