Everyone has the right to respect for his or her private and family life, home and communications.
Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority."
It clearly states here in 2 “consent of the person concerned OR some other legitimate basis laid down the law”, any random law will trump personal consent
One of the reasons international human rights law is so worthless in actual practice, is that half of it is framed like this. "Everyone has the right to X, except as duly restricted by law." Cool, so that's not a right at all then.
Ditto the Canadian Charter of Rights and Freedoms, with its 'notwithstanding' clause. (Though they're presently litigating over that, so we'll see what happens!)
Any constitution or human rights instrument full of exemptions, 'emergency powers', 'notwithstanding' clauses, or 'states of exception' is not worth the paper it's written on.
Every contract I have to agree to these days has a "valid until unilaterally invalidated" clause. It feels like we're all just going through the motions.
That's why countries like Austria have enshrined the Human Rights Charter into constitutional law, meaning only other law at constitutional rank could potentially conflict with such clauses. You can get your own country to do it, too.
That is in fact the only way most laws work: freedom of movement, except if you’re arrested and detained in accordance with law. Freedom of speech except when you are falsely yelling fire in a crowded theater or slandering someone. In general all rights have exceptions carved out by law. And any way you carve that exception out (eg to cover those convicted of crimes) can be twisted by a legislature or judicial body that wants to act in bad faith.
(That’s not to say laws shouldn’t make a better attempt to circumscribe exceptions)
You're fuzzing the crucial distinction between well defined and narrowly tailored exemptions, which are of course normal, and these exemptions, which are complete blank cheques that effectively neuter the rule they attach to.
No laws are absolute, some laws are more holes than cheese, but a law that says "A government must not punish you for doing X, except in accordance with duly passed criminal laws that make X illegal" is almost entirely pointless. It exists solely to make people feel fuzzy when reading the first half of the sentence, which is the only part you'll ever hear quoted, while not actually impeding anything a government may wish to do to you. This is intentional. Those carte blanche exemptions do not consistently appear across international human rights treaties by some accident.
Even if the law included the literal phrase "Congress shall make no law" or "shall not be infringed", there would still be carve-outs and exceptions deemed acceptable and non-infringing because at the end of the day it's the government, and they'll do what they want, because who exactly is going to stop them?
It doesn’t remove the “right to the protection of personal data concerning him or her.” The law cannot be random, it must ensure “fair processing” and be limited to “specific purposes”, and the European Court of Justice as well as the ECHR will decide what constitutes a “legitimate basis” in that context. Furthermore, “Everyone has the right of access to data which has been collected concerning him or her”, which ensures transparency of what is being collected.
Secrecy of correspondence only applies to sealed physical letters, so it has zero applicability to this law and provides zero protection against scanning of private messages.
Also it isn't respected in most types of criminal trials. If a sealed physical letter is opened and proves fraud, for example ...
Secrecy of correspondence doesn't necessarily only apply to physical letters as far as Constitutions go. In Finnish constitution it is defined as "The secrecy of correspondence, telephony and other confidential communications is inviolable" meaning it also applies to any internet message.
Unfortunately large majority of parties in Finnish Parliament do not really care about that provision and have passed multiple laws which create exceptions to it. They do it via the proper protocol (which is essentially the same as modifying the Constitution itself) so it's technically legal.
Secrecy of correspondence still has exceptions. That's what is always lost in these discussions -- every right of every person is not absolute. Just because you have a right to personal property, doesn't mean you don't have to pay taxes or store nuclear material in your basement. That's the hard part.
But end to end encryption with forward secrecy at no cost to user makes your right to private communication absolute. It's a new thing and the balancers can't balance it against other rights of other people, so this happens.
> But end to end encryption with forward secrecy at no cost to user makes your right to private communication absolute
As it should be. Governments should have to suck it up. If they want to know things about someone, they should have to actually assign police to follow them around. Not click a button and have the lives of everyone in the entire world revealed to them.
The ends still have the decryption keys, so the result is the same as with a physical letter: you have to acquire the physical object holding the key material.
No, not any random law. To the extent the relevant law-making is within EU's competence (ie excluding certain areas like national security and similar), the general framework for rules on the processing of personal data has been laid down by the GDPR (and for law enforcement related stuff, a similar Directive[1]), in particular, considerably restricting, limiting and in part downright precluding national law-making within that legislative and policy area, including eg the legal bases available for in-scope processing activities (Art 6 GDPR, also Art 9 for certain sensitive data categories).
Anyway, as far as human/fundamental rights go, the encryption and related issues in Chat Control tend to fall more on the Article 7 side of the Charter[2] like many similar questions related to different forms of (mass) surveillance, secrecy / confidentiality of (electronic) communications, including related national regimes with often diverse jurisdiction-specific histories, etc.
[1] The main difference between a Directive and a Regulation under EU law is that a Directive requires implementation on the national level to work properly (ie national legislation, usually with some room for discretion and details here and there), while a Regulation is directly binding and effective law in member states wholly in itself.
[2] And similar/corresponding language in the European Convention on Human Rights (ECHR), including the related case law of the European Court of Human Rights (ECtHR). While these are not EU institutions, European human rights law is recognized and applied as constitutional / fundamental rights-level law both by the EU and member state courts.
I feel we need something much more strongly worded to protect our mail, paper or electronic, messages and other communications from being read, not just “respect”.
The problem is, in all of those member states, they all have carve outs for "national security."
Germany, for exmaple, has secrecy of correspondence that extends to electronic communications, but allows for "restrictions to protect the free democratic basic order" and outlines when intelligence services can bypass the right to privacy.
Italy, France, and Polan also have similar carve outs.
Having it as a right isn't enough. National security and "public safety" carve outs need to be eliminated. So long as those exist, we have no right to privacy.
Rights are never absolute, they always have to be weighed against each other. The weighing can and should be debated, and needs strong protections when put into practice, but demanding an absolute is not reasonable.
There are no absolute rights, even in the charter of human rights, which is about as basic as it gets. The reality is that every right, if regarded as absolute, violates another fundamental right, if regarded as absolute.
Take for example Article 3 of the declaration of human rights:
> Everyone has the right to life, liberty and security of person.
The article already has a collision set up in itself: You have the right to live in safety. But also, everyone has the right to live in liberty. If taken as an absolute, the right of liberty would prevent incarceration of dangerous individuals, violating the other individuals right to all life in safety.
Similarly, other fundamental rights get curtailed: The freedom of speech is in balance with the right to personal dignity of article one and other rights.
Not acknowledging that even fundamental human rights are in a tension with each other is just ignoring reality and will get you nowhere in a legal discussion.
The discussion is not which right is absolute, it is about how to balance the tension between the various rights. And different societies strike a different balance here.
Take for example the right to freedom and liberty. Lifelong imprisonment without parole as punishment is not a thing in Germany. There’s an instrument that allows the court to keep the perpetrator locked up in case the court considers the individual dangerous, but until 1998, this could not be retroactively be applied. There was a major legal upheaval with multiple rounds to the constitutional court to change that and it took until 2012/2013 to find a legal framework that wasn’t declared unconstitutional. To this day, however, Sicherheitsverwahrung is not a punishment, but a combination of therapy and ensuring the safety of society and it’s subject to regular checks if the conditions for the lockup still exist. The individuals are also not held in prisons, but in nicer facilities.
On the other hand, many US states still have the death penalty and are proud of it.
> The article already has a collision set up in itself
Yeah, because it's a made up self-contradictory notion with absolutely zero basis in reality. It's the people who believe in "rights" who are ignoring reality. Safety? The world is a dangerous place where you can be randomly killed if you take a wrong turn and no amount of "rights" is ever going to change that. Food and shelter? Simple economics are enough to defeat this, there isn't enough for everybody, rationing ensues almost immediately and suddenly you're forced to decide who's most "deserving" of these resources. Privacy? The FVEY get around it by spying on each other and sharing data because foreigners are always fair game. You can name virtually any right and the inherent contradictions in it are plain to see to anyone willing to go outside and see the world for what it actually is instead of what some "charter" says it should be.
It would be infinitely more honest if these governments simply decided to declare you guilty of whatever you're suspected of when they find your encrypted data. That's what they actually want to do. No need to engage in this song and dance about balancing "rights". If they did this, at least people would see things as they are instead of engaging in this constant abstraction in an attempt to rationalize and justify things by saying that you have the "right" to privacy but actually you don't when it's "in the interests of national security" for you to not have it. That sort of double speak is hazardous for my mental health and I'm tired of engaging in it.
So you’re saying there can be no worthwhile privacy protections as long as subpoenas and search warrants exist and it’s physically possible for someone to eavesdrop? I guess we might as well switch everything back to http.
The only worthwhile protections are those provided by mathematics. If you encrypt a message, then you can be sure not even god will read it. When a government gives you "protections" you can be sure of nothing.
I think the better way to phrase this against both relativism and absolutism is in the following way.
Rights are inherent to human nature, or they are nothing at all. If they could be granted by gov’t, then they can be taken away; they wouldn’t be rights. They allow individuals to fulfill their natural moral duties; you have a right to a good, because you have a prior obligation to pursue it. While the existence of these rights is universal and inalienable, their exercise is not absolute, as they are always limited by justice and the common good of the community. Because these rights are pre-political - they are not legal privileges; the state’s only legitimate role here is to recognize and protect what already exists by nature; any civil law that contradicts them is a perversion of justice rather than a binding law.
So…if privacy is a right (and I would say it is a derivative right, from more basic rights), then it does not follow that its scope is absolutely unrestrained. It’s not difficult to come up with examples where privacy is constrained or abrogated for this reason.
The trouble with broad privacy-violating measures is that they are sweeping in scope and unjustified, making them bad for the common good and a violation of a personal right. It is clearly motivated by technocratic design and desire for control, not the common good and the good of persons. Because it is unjustified, its institution is therefore opposed to reason. It effectively says that no vaild justification need exist. This is a voluntarist, tyrannical order.
The absolutist stance likes to claim that “having justification” is always how rights are violated, but this is wrongheaded. This is tantamount to claiming that we can’t tell a valid justification from an invalid one. But if that were true, then we are in much worse shape than such people suppose. If we cannot discern a valid justification from a bad one, then how can we have the capacity to discern when a right is being violated at all? Furthermore, it is simply not the case as a general political rule that gov’ts will violate rights if those rights are not absolute (which has never been the case anyway). The evidence does not support this thesis. And furthermore, if a gov’t wishes to violate a right, treating it as if it were an absolute doesn’t somehow prevent it from being violated. Some place too much faith in supposed structural elements of gov’t as ways to keep this from happening (like separation of powers), but there is nothing in principle to prevent these branches from cooperating toward such an end.
I dunno; I think in practice an absolute sometimes shakes out just fine.
In this case, I see no reason that we would want to draft constitutional rights such that we consider a government's actions taken in pursuit of their national security to be, per se, legal — i.e. warranted, unable to be sued over, etc.
Imagine instead, a much weaker right granted to the state: the right to maintain laws or regulations which require/force government or military employees to do things that violate people's rights and/or the law of the land. But with no limit on liability. No grant of warrant. Just the mildest possible form of preservation: technically constitutional; and not immediately de-fanged the first time the Supreme Court gets their hands on it.
So, for example, some state might introduce a new law saying that soldiers can come to your house and confiscate your laptop. And then the head of that state might actually use that law to invade your home and take your laptop.
Given that the law exists, it would be legal for the head-of-state to give this order. And it would also be legal for the soldiers to obey this order (or to put it another way, court-martialable for the soldiers to disobey this order, since it's not an illegal order.)
But the actual thing that happened as a result of this law being followed, would be illegal — criminal theft! — and you would therefore be entitled to sue the state for damages about it. And perhaps, if it was still reporting on Find My or whatever, you might even be entitled to send police to whatever NSA vault your laptop is held in, to go get it back for you. (Where, unlike the state, those police do have a warrant to bust in there to get it. The state can't sue them for damages incurred while they were retrieving the laptop!)
The courts wouldn't be able to strike down the law (the national-security provision allows the state to declare it 'not un-constitutional", remember?); but since obeying the law produces illegal outcomes, you would be able to punish the government each and every time they actually use it. In as many ways as the state caused you and others harm through their actions.
There is absolutely zero reason why the state shouldn't be expected to "make people whole" for damages it has caused them, each and every time it does something against the people's interest in the name of national security.
And the simplest way to calculate that penalty / make the claiming and distribution of those rewards practical, would be to just not remove liability for these actions taken on behalf of the state, by not granting the state the right to do them in the first place. Just put them in the position of any other criminal, and force them to go to court to defend themselves.
"to protect the free democratic basic order", the irony.
It's incredible how even with the current surge of autocracy, most politicians can't see that the surveillance tools they crave for, could come under control of people much worse than them.
And can't see what they could do with them.
I think that many current governments in Europe are convinced that more surveillance will stop the autocratic surge. It's insane that they don't see how this is far from guaranteed, and how it will go if they're wrong.
>National security and "public safety" carve outs need to be eliminated. So long as those exist, we have no right to privacy.
This is overly absolutist, or maybe idealistic view. National security and public safety IS more important than individual right to privacy. As an extreme example, if your friend was dying, you had a password to my email, and you knew that you can use information in my inbox to save that person i really hope you would do it.
In general I think that police with a court order should be able to invade someone's privacy (with judge discretion). I mean they can already kick down someone's doors and detain them for several days - checking email doesn't sound too bad compared to it, does it? I think they should also be legally obliged to inform that person in let's say 6 months that they did it.
The problem is that modern world is drastically different than the old world when you needed to physically hunt down letters. Now you can mass scan everyone's emails, siphon terabytes of personal data that stasi could only dream of, and invigilate everyone. This is something that is worth fighting against.
> National security and public safety IS more important than individual right to privacy.
I disagree.
Because as soon as you open the door to governments reading your mail, they will read your mail. They can't help themselves. [0]
The only way of stopping them from doing this to excess is to stop them doing it at all.
The "National Security and Public Safety" thing is what they say to justify it, but that's not what the powers will actually be used for. They will actually be used for far less noble purposes, and possibly actually for evil.
We are actually much more secure if we don't let the government read our mail.
Article 7 codifies "respect for [one's] private life" and "respect for [one's] private communications". Well, "respect" is a vague notion. This does not clearly imply that the government is not allowed to read your communications, or otherwise spy on you, if it believes it has good reason. It will do so "respectfully", or supposedly minimize the intrusion etc.
As for article 8: Here it is "protection of personal data" and "fair processing". It does not say "protection from government access"; and "processing" is when the government or some other party already has your data. In fact, as others point out, even this wording has an explicit legitimization of violation of privacy and 'protection' whenever there is a law which defines something as "legitimate basis" for invading your privacy.
You would have liked to see wording like:
* "Privacy in one's home, personal life, communications and digital interactions is a fundamental right."
* "The EU, its members, its bodies, its officers and whoever acts on its behalf shall not invade individuals' privacy."
and probably something about a non-absolute right to anonymity. Codified exceptions should be limited and not open-ended.
> This does not clearly imply that the government is not allowed to read your communications, or otherwise spy on you, if it believes it has good reason. It will do so "respectfully", or supposedly minimize the intrusion etc.
Which is... okay? Government gonna government, that's what we pay it to do.
The Charter has been used by the courts to shoot down incoming legislation. So, in a way, those pieces of paper mean everything, as without them legislation would pass without the judiciary branch being a check on the Bloc’s powers. Your comment is merely cynical.
In theory these limit the power of the EU, while anything the EU parliament passes can just be undone as easily by a future EU parliament. If you don't believe the EU charter provides any protection, why would you believe an EU law would be any different?
In theory, governments are made up of citizens. In practice, once the citizens are corrupted into corporate shills, they become politicians. They have traded their humanity for business class seats and dining at restaurants that cater to those whose entire personality is talking about their investment portfolio.
Oh, please, stop this tired ‘victim of corrupt bureaucrats‘ framing.
People have real choice in EP elections. There are parties that will always stand up for citizens’ rights. If they had enough seats, they could have voted this item off the agenda.
Yet, people continue to choose the same conservatives and radical right over and over again, because they are enraged about immigrants and identity politics. Blame the voters.
Why continue with the increased migration that the majority of the population has generally opposed then? One could have avoided those discussion points.
Also what you group as the radical right doesn't tend to be supportive of this idea.
They full well know they are at times at the receiving end of web control legislation and drives atm. Same for 'radical left' groups.
It's the conservatives that at times make some fuzz about migration to draw votes from the former whilst keeping said migration going since it favours some of the companies they (and a load of other established parties) draw support from.
There is a famous German comedian that invented a figure known as "The Kangaroo". It once said:
"Whether left-wing or right-wing terrorism – I see no difference there."
"Yes, yes," calls the kangaroo, "the ones set foreigners on fire, the others cars. And cars are worse, because it could have been mine. I don't own any foreigners."
"Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority."