sectors. Since Sweden serves as a local
hub for transit traffic from and to Norway, Finland, and Russia, the wider
cross-border impact is evident. For example, Russia would be exposed to the
surveillance scheme so long as a significant share of its domestic Internet
traffic is routed via Sweden. Apart from
the diplomatic distortions these countries have a palpable incentive to bypass
Sweden in the near future and connect
to other available Internet exchange
services or set up their own facilities.
The Swedish example illustrates how
not to expand surveillance. It also shows
that new surveillance legislation can
have repercussions far beyond strict privacy concerns. The subsequent efforts
Sweden put into amending the first FRA
law were only trying to adjust the sweeping effects it created. The new draft law
presented by the government at the end
of September last year is significantly
more tailored and contains additional
safeguards; it introduces a special court
designated to authorize signal surveil-
Because of the
many Big Brothers
may be watching,
we lose out when
via the Internet.
lance requests from the government
and the armed forces to FRA. 2
European constitutional tradition
protects everyone’s communications in
a country’s territory, and thus the same
principles and safeguards apply to the
legal interception of domestic and international communications. It does
not matter where the originator or the
recipient of a particular communication
are located in order to benefit from the
protection guaranteed inside a country.
Maintaining the same thresholds for all
communications entering a jurisdiction would also help to overcome the
expansion of surveillance to foreign individuals and businesses that typically
do not have much influence in a legislative process otherwise. For example, it is
likely the Swedish people are most concerned about their own rights to privacy
in communications and might not be
as interested in the rights of foreigners,
whose transit communications would
be intercepted. Still, their engagement
promotes as well the case of foreigners
that otherwise do not carry significant
International agreements that guarantee the right to communications
privacy should play a more significant
role to uphold the level of protection
against unfettered surveillance powers. One example is Article 8 of the European Convention of Human Rights,
which provides the right to respect for
one’s private life and correspondence.
More importantly, the possibility to
turn to the ECHR for an appraisal of
domestic surveillance laws helped to
clarify the requirements that legal interception rules have to meet in order
to comply with the fundamental right.
Its judgments concerning the strategic
28 CommunICatIons of the aCm | feBRuaRY 2009 | vol. 52 | No. 2
monitoring schemes, as opposed to
monitoring of individual communications, in Germany and the U.K. show
that the key to permissible legal interception lies in the precise description
of the authority and procedures that
would empower a proportionate level
In my opinion, there is no other
international mechanism that would
compare to the supranational oversight
of domestic surveillance laws of the
ECHR. Unsurprisingly, many country’s
national interests point toward intelligence gathering, where internationally enforceable standards for legal interception would just be burdensome.
The prospect to access international
traffic that is passing through their territories’ Internet infrastructure is perceived as an addition to conventional
methods of interception.
Because of the possibility that many
Big Brothers may be watching, as individuals we lose out when we communicate
via the Internet. But the privacy of the
individual is only one part of this complex issue; business is another. When
international ICT companies choose a
regional location for doing business,
countries that maintain a proportionate
and safeguarded policy regarding legal
interception could find themselves with
a competitive advantage over neighbors
that do not have such policies. And that
would ultimately be good for privacy,
business, and the security of the nation
choosing to adequately protect communications privacy.
a European Court of Human Rights (ECHR),
case of Weber and Saravia v. Germany, no.
54934/00, decision of June 29, 2006; case of
Liberty and Others v. the United Kingdom, no.
58243/00, decision of July 1, 2008.
1. fleischer, P. sweden and government surveillance (May
31, 2007); http://peterfleischer.blogspot.com/2007/05/
22. government unites around new fra law. The
Local (sept. 26, 2008); http://www.thelocal.
3. Markoff, J. internet traffic begins to bypass the U.s.
The New York Times (aug. 30, 2008).
4. surveillance sweep—a new surveillance law causes
a rumpus in sweden. The Economist (July 22, 2008);
5. sveriges riksdag. new signal surveillance act (föU15)
(June 18, 2008); http://www.riksdagen.se/templates/r_
illUstration by celia Johnson
Kristina Irion ( firstname.lastname@example.org) is an assistant professor
in the department of Public Policy at central european
University in budapest, hungary.