[ANSOL-geral] Que mil NSA's florescam... Nem o Mao teria dito melhor...

[André Isidoro Fernandes Esteves]

Que mil NSA's florescam... Nem o Mao teria dito melhor...

http://www.nytimes.com/2015/10/28/opinion/europe-is-spying-on-you-mass-surveillance.html?_r=1

Europe Is Spying on You
By NILS MUIZNIEKSOCT. 27, 2015

STRASBOURG, France — When Edward Snowden disclosed details of America’s 
huge surveillance program two years ago, many in Europe thought that the 
response would be increased transparency and stronger oversight of 
security services. European countries, however, are moving in the 
opposite direction. Instead of more public scrutiny, we are getting more 
snooping.

Pushed to respond to the atrocious attacks in Paris and Copenhagen and 
by the threats posed by the Islamic State to Europe’s internal security, 
several countries are amending their counterterrorism legislation to 
grant more intrusive powers to security services, especially in terms of 
mass electronic surveillance.

France recently adopted a controversial law on surveillance that permits 
major intrusions, without prior judicial authorization, into the private 
lives of suspects and those who communicate with them, live or work in 
the same place or even just happen to be near them.

The German Parliament adopted a new data retention law on Oct. 16 that 
requires telecommunications operators and Internet service providers to 
retain connection data for up to 10 weeks. And the British government 
intends to increase the authorities’ powers to carry out mass 
surveillance and bulk collection of intercepted data.

Meanwhile, Austria is set to discuss a draft law that would allow a new 
security agency to operate with reduced external control and to collect 
and store communication data for up to six years. The Netherlands is 
considering legislation allowing dragnet surveillance of all 
telecommunications, indiscriminate gathering of metadata, decryption and 
intrusion into the computers of non-suspects. And in Finland, the 
government is even considering changing the Constitution to weaken 
privacy protections in order to ease the adoption of a bill granting the 
military and intelligence services the power to conduct electronic mass 
surveillance with little oversight.

Governments now argue that to guarantee our security we have to 
sacrifice some rights. This is a specious argument. By shifting from 
targeted to mass surveillance, governments risk undermining democracy 
while pretending to protect it.

They are also betraying a long political and judicial tradition 
affording broad protection to privacy in Europe, where democratic legal 
systems have evolved to protect individuals from arbitrary interference 
by the state in their private and family life. The European Court of 
Human Rights has long upheld the principle that surveillance interferes 
with the right to privacy. Although the court accepts that the use of 
confidential information is essential in combating terrorist threats, it 
has held that the collection, use and storage of such information should 
be authorized only under exceptional and precise conditions, and must be 
accompanied by adequate legal safeguards and independent supervision. 
The court has consistently applied this principle for decades when it 
was called to judge the conduct of several European countries, which 
were combating domestic terrorist groups.

More recently, as new technologies have offered more avenues to increase 
surveillance and data collection, the court has reiterated its position 
in a number of leading cases against several countries, including 
France, Romania, Russia and Britain, condemned for having infringed the 
right to private and family life that in the interpretation of the court 
covers also “the physical and psychological integrity of a person.”

Last year, the European Court of Justice set limits on telecommunication 
data retention. By invalidating a European Union directive for its 
unnecessary “wide-ranging and particularly serious interference with the 
fundamental right to respect for private life” and personal data, this 
court reaffirmed the outstanding place privacy holds in Europe. This 
judgment echoed a 2006 German Constitutional Court ruling that the 
German police had breached the individual right to self-determination 
and human dignity after they conducted a computerized search of 
suspected terrorists.

Regrettably, these judgments are often ignored by key decision-makers. 
Many of the surveillance policies that have recently been adopted in 
Europe fail to abide by these legal standards. Worse, many of the new 
intrusive measures would be applied without any prior judicial review 
establishing their legality, proportionality or necessity. This gives 
excessive power to governments and creates a clear risk of arbitrary 
application and abuse.

If European governments and parliaments do not respect fundamental 
principles and judicial obligations, our lives will become much less 
private. Our ability to participate effectively in public life is 
threatened, too, because these measures curtail our freedom of speech 
and our right to receive information — including that of public 
interest. Not all whistleblowers have the technical knowledge Mr. 
Snowden possessed. Many would fear discovery if they communicated with 
journalists, who in turn would lose valuable sources, jeopardizing their 
ability to reveal unlawful conduct in both the public and private 
spheres. Watergates can only happen when whistleblowers feel protected.

Indiscriminate mass surveillance can also impinge on attorney-client 
privilege and medical confidentiality. You might think twice before 
seeing a lawyer or a doctor, knowing that the authorities — and private 
companies — are aware of your communications and movements.

It is essential that European countries pause and consider the damage 
they have done. At a minimum, three core safeguards should be provided.

First, legislation should limit surveillance and the use of data in a 
way that strictly respects the right to privacy as spelled out in the 
Universal Declaration of Human Rights, the International Covenant on 
Civil and Political Rights, European data protection standards, the case 
law of the European Court of Human Rights and that of the European Court 
of Justice. These norms oblige states to respect human rights when they 
gather and store information relating to our private lives and to 
protect individuals from unlawful surveillance, including when carried 
out by foreign agencies.

Second, there must be rigorous procedures for the examination, use and 
storage of all data obtained, and those subjected to surveillance should 
be given a chance to exercise their legal rights to appeal.

Third, security agencies must operate under independent scrutiny and 
judicial review. This will require intrusive oversight powers for 
parliaments and a judiciary that is involved in the decision-making 
process to ensure accountability. Countries that have adopted 
controversial surveillance laws should reconsider or amend them. And 
those considering new surveillance legislation should do so with great 
caution.

Terrorism is a real threat and it requires an effective response. But 
adopting surveillance measures that undermine human rights and the rule 
of law is not the solution.

Nils Muiznieks is the Council of Europe Commissioner for Human Rights.