Reforms to surveillance laws are improving transparency but better checks and balances to match the powers of intelligence services are needed, finds a new report from the European Union Agency for Fundamental Rights (FRA). It shows how clear legal frameworks, robust safeguards and effective oversight are needed to enhance security and respect fundamental rights.
“Protecting fundamental rights and delivering effective national security are not incompatible; for instance, surveillance systems that respect human rights work better,” says FRA Director Michael O’Flaherty. “Respecting privacy and data protection builds trust in intelligence services, improves data collection and analysis, and ultimately strengthens national security.”
The Agency’s second ‘Surveillance by intelligence services: fundamental rights safeguards and remedies in the EU’ report explores legal changes since its 2015 report and for the first time captures the views of intelligence experts and controllers themselves to see how these laws work in practice.
Security threats and new technology have triggered numerous extensive reforms to surveillance laws. While reformed legal frameworks are clearer, they are often still too complex, leading to uncertainty over the powers and mandates of intelligence services. This calls for stronger safeguards when it comes to data protection and privacy.
The judiciary, specialised expert bodies, parliamentary committees and data protection authorities play a vital role in overseeing the work of intelligence services. However, as the report notes, they are hindered by a lack of access to information, and limited competences, powers to issue binding decisions, technical know-how, resources and independence. This points to the need for independent oversight with sufficient powers and competences. This also applies to international intelligence cooperation where safeguards and oversight are weaker.
There is also the need to ensure full cooperation and complementarity between various oversight bodies so there is continuous coverage of all surveillance steps – from authorisation to implementation.
The complexity of who can help and the secrecy surrounding intelligence work also make it difficult for victims of rights violations to seek effective remedies. In addition, many non-judicial bodies that can offer support lack the expertise to tackle intelligence issues, and independence and powers to investigate, access materials, or issue binding decisions. However, some Member States have found solutions enabling people seek justice through expert judges who may access classified information.
The report updates FRA’s 2015 legal analysis complemented with findings from over 70 interviews with experts in seven EU Member States: Belgium, France, Germany, Italy, the Netherlands, Sweden and the United Kingdom.
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Notes to editors:
FRA is the EU’s independent body for delivering fundamental rights assistance and expertise to the EU and its Member States.