This paper analyzes the impact of the Zakharov case in the context of widespread surveillance that threatens our rights and liberties.

Since 2013, when Edward Snowden revealed the methods by which the United States and other Western powers intercept communications on a massive scale, there is no question that this surveillance exists. We may have accepted it without too much concern, protected by the anonymity of numbers and the premise that we have nothing to hide, but international mechanisms of large-scale surveillance pose a serious threat to human rights, as demonstrated by the increasing concern of the United Nations.

Hyper-surveillance

The General Assembly of the UN has passed resolutions, such as on the right to privacy in the Digital Age, the High Commission on Human Rights has published reports, and a Special Rapporteur position was established in July of 2015. The post-9/11 era has brought on a monstrous level of hyper-surveillance and social control, which is strengthened every day by governments that legislate to this end.

The sentence handed down by the Grand Chamber of the European Court of Human Rights Court (ECtHR) in the case of Roman Zakharov vs. Russia should be read in the context of this increasing concern, the first signs of which — at a European level — have been the European Court of Justice’s sentence annulling the Safe Harbor Decision with the United States (the Schrems case) and the European Parliament’s resolution regarding large-scale surveillance of European citizens, highlighting Snowden’s important role.

Rights define democracy

This is a leading case, which seeks to set a precedent in light of the global dimension of the problem. The European Court of Human Rights makes an in-depth analysis of the Russian legal system regarding the relative degree to which instruments for the secret interception of communications are regulated. A whole system is placed on trial through a broad interpretation of Article 34 of the Convention, making explicit reference to the minority opinion of Judge Dedov.

The right to privacy, like the right to freedom of expression, is essential not only to individuals but to society as a whole. It is one of the rights that defines democracy, as expressed in the majority opinion of Judge Ziemele in which he explains that laws such as the Russian one "contravene the rule of law and democratic principles."

The ECtHR emphasizes that legal authorization does not constitute an adequate guarantee against abuses and the arbitrary use of secret access to communications, inasmuch as this authorization does not necessarily guarantee that the means of surveillance be used solely "when necessary in a democratic society."

It establishes the need to guarantee a real and effective control over these interventions, both by the law and by citizens in the exercise and defense of their rights. This control should apply to the entirety of the process of surveillance, defining the circumstances and conditions in which intercepted data is to be stored or destroyed.

Do as the Russians do?

The sentence demands that we look carefully at our system. Spanish legislation on this question differs little from Russian legislation. Spain established the Integrated System of Communications Control (SITEL) in 2001, although the system did not become operative until 2004 due to doubts regarding its legality. The National Police, the Civil Guard and the National Intelligence Center (CNI) have direct access to this system.

However while in Russian law Order 70 describes the technical details of secret access to communications, in Spain the public knows nothing of the technical details of how SITEL works, much less the new system Evident X-Stream.

SITEL permits direct access to network providers’ systems in order to obtain their users’ information, meaning that interceptions could be made prior to legal warrant, precisely in order to obtain indices that might later be used to justify the operation. In this regard the ECHR is clear and establishes that one way to guarantee against abuse and arbitrary access by authorities would be to require that a legal warrant be shown to the service provider before attaining access to a person’s communications.

Insufficient guarantees

The law that regulates the CNI’s investigations prior to the issue of a warrant leaves nearly all the crucial aspects of this delicate matter undefined. It does not specify how or in what circumstances intercepted data may be stored, used, or destroyed.

The reform of the Criminal Trial Law also has many gaps. It presents surveillance possibilities which generate tremendous uncertainties: it considers the use of spy software, which permits the surveillance of nearly everything, and leaves it to the judges to establish measures to guarantee the preservation of the information obtained in this way, as well as questions regarding the storage and destruction of data, leaving excessive room for discretion in these important matters.

The ECtHR does not consider that those systems that rely upon warrants to intercept communications offer sufficient guarantees.

Moreover, it demands much more in terms of the "quality" of the laws that address the secret interception of citizens’ communications, as well as the possibility of appealing to the courts in order to check the legality of the interferences to which a citizen has been subjected.

Pilar Eirene de Prada is a lawyer and political scientist specialized in peace-building, as well as a human rights and peace activist. Her research centers on the role of civil society in peace processes.