Communications - February 2009

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
possibility that
many Big Brothers
may be watching,
as individuals
we lose out when
we communicate
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 political weight.

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 of surveillance.^a

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.

References

1. fleischer, P. sweden and government surveillance (May 31, 2007); http://peterfleischer.blogspot.com/2007/05/ sweden-and-government-surveillance.html.

22. government unites around new fra law. The

Local (sept. 26, 2008); http://www.thelocal. se/14576/20080926/.

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); http://www.economist.com/agenda/displaystory. cfm?story_id=11778941.