Feature: CoE mass surveillance resolution pressures gov'ts to balance security, privacy

he Council of Europe (CoE) declared Tuesday that mass surveillance "does not appear to have contributed to the prevention of terrorist attacks," in a resolution adopted by the CoE's Parliamentary Assembly (PACE).

The resolution, overwhelmingly adopted with 132 votes in favour, 4 against and 9 abstentions, makes a strong argument against mass surveillance techniques, arguing that such intelligence methods "endanger human rights," such as the right to privacy, and may even help terrorism.

"Resources that might prevent attacks are diverted to mass surveillance, leaving potentially dangerous persons free to act," the resolution explained.

This move by PACE comes in response to revelations after American whistle-blower Edward Snowden disclosed classified files in 2013 which showed the use of extensive surveillance techniques being used at the time by the U.S. National Security Agency (NSA) and its international partners in the global intelligence committee, to collect information on individual citizens worldwide.

"In several countries, a massive 'Surveillance-Industrial Complex' has evolved, which risks escaping democratic control and accountability and threatens the free and open character of our societies," the resolution states.

For the assembly, the question is not to abandon intelligence operations or the fight against terrorism, but to employ precious intelligence resources in "targeted surveillance" under appropriate oversight by competent national authorities.

This is particularly pertinent as since the January terrorist attacks in Paris, countries such as France and Germany have been in the process of discussing counter-terrorism legislation that could see governmental approval of mass surveillance techniques.

Through its resolution, however, PACE calls on national governments of Council of Europe (CoE) participating states to ensure the legal frameworks are in place for the oversight of intelligence operations, and to normalize agreements on the exchange of intelligence information and the transparency of intelligence operations between allies.

This takes on special significance in light of revelations in 2013 that the NSA tapped the personal phone of German Chancellor Angela Merkel, a disclosure that created uproar in Germany and caused tensions between the United States (U.S.) and many of its allies.

It also highlights problems following the disclosure of the NSA "Five Eyes" program, in which national intelligence agencies in Australia, Canada, New Zealand, the United Kingdom and the U.S. bypassed national regulations prohibiting surveillance of private individuals by exchanging information about each other's citizens.

PACE has welcomed an inquiry within the German Bundestag to determine the repercussions of the NSA affair in Germany, while calling on the committee charged with the investigation to pursue the truth regardless of political considerations, and encouraging other parliaments to engage in similar inquiries.

Perhaps most important, however, are the actions the assembly's resolution demands in response. Firstly, PACE has shown its support for an invitation by the European Parliament (EP) in March 2012 for CoE Secretary General Thorbjorn Jagland to use his powers under Article 52 of the European Convention on Human Rights to make an inquiry into member states' use of mass surveillance techniques.

This puts pressure on the secretary general to act, now that a crucial internal CoE organization has endorsed the request of an external organization as important as the EP to intervene in the situation. The last time that an Article 52 investigation was used was in 2005 when the secretary general requested that member states respond to allegations of the secret detention and transport of terrorism suspects at the request of foreign intelligence agencies, namely the U.S. Central Intelligence Agency (CIA).

The secretary general has the right to refuse to use his powers under Article 52, but such a choice would put Jagland in disaccord with both the EP and the parliamentary assembly of his own institution.

Another critical recommendation in the PACE resolution calls on the CoE Committee of Ministers, made up of the foreign ministers of all 47 CoE member states, to address participating countries with recommendations for how to ensure the protection of privacy, but also to launch an initiative to create an "intelligence codex" for the intelligence services of member and observer states.

As described by the resolution, this codex would establish regulations to govern co-operation for intelligence agencies in the fight against terrorism and organized crime, which implies both recommendations for how to use targeted surveillance techniques, as well as restrictions on methods that are seen as infringing on individual privacy and other human rights.

Since the CoE is a normative organization, the objective would be to normalize intelligence practices across participating states, in order to ensure effective techniques, but more importantly a certain standard of respect for human rights. In other words, the goal is to find balance, equipping national intelligence agencies with the tools needed to combat terrorist organizations, but not at the cost of individual liberties.

"Total surveillance of all our communications and movements is a real possibility; total security certainly is not," claimed by Pieter Omtzigt (Netherlands, Group of the European People's Party), who prepared the original report on mass surveillance for the PACE Committee on Legal Affairs and Human Rights.

Now the pressure is on Secretary General Jagland and the CoE Committee of Ministers to take action and demand both cooperation and accountability from the intelligence communities of member states. Endit