Reformed surveillance laws ‘often still too complex’

Reforms to surveillance laws are improving transparency, but better checks and balances to match the powers of intelligence services are needed, according to a new report from the EU Agency for Fundamental Rights (FRA).

FRA director Michael O’Flaherty said: “Protecting fundamental rights and delivering effective national security are not incompatible; for instance, surveillance systems that respect human rights work better.

“Respecting privacy and data protection builds trust in intelligence services, improves data collection and analysis, and ultimately strengthens national security.”

The second Surveillance by intelligence services: fundamental rights safeguards and remedies in the EU report explores changes since 2015 and includes interviews with over 70 intelligence experts and controllers in seven countries to see how these laws work in practice.

It finds that while reformed legal frameworks are clearer, they are often still too complex, leading to uncertainty over powers and mandates.

It argues that the judiciary, specialised expert bodies, parliamentary committees and data protection authorities are hindered by a lack of access to information, and limited competences, powers to issue binding decisions, technical know-how, resources and independence.

This, it says, 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.

The report also notes that the complexity of who can help and the secrecy surrounding intelligence work also makes 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.