The "essence" of the fundamental rights to privacy and data protection in the context of state surveillance

The EDPS has just published a comprehensive study by Prof. Gloria González Fuster on the essence of the fundamental rights to privacy and to protection of personal data, and marked the publication of the study with a one day seminar on the issue earlier this week. As the event wasn't public I won't summarise what the other panellists said, though I'm sure they won't object if I refer to some of their excellent prior work either directly on the topic or touching on it (Prof. Takis Tridimas; Prof. Cecilia Rizcallah; Prof. Maria Grazia Porcedda; Prof. Kathleen Gutman; Prof. Herke Kranenborg (paywalled); Prof. Nóra Ní Loideáin; Prof. Hielke Hijmans).

For my part, I offered some practical thoughts on applying these concepts to state surveillance which I've summarised below.

To set the scene: identifying the "essence" of these fundamental rights is significant because of Article 52(1) of the Charter of Fundamental Rights which provides that "Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms". As the President of the CJEU, Koen Lenaerts, has explained:

Respect for the essence of fundamental rights is laid down in Article 52(1) of the Charter of Fundamental Rights of the European Union, as one of the conditions that must be fulfilled in order for a limitation on the exercise of a fundamental right to be justified. Accordingly, where an EU measure fails to take due account of the essence of a fundamental right, that measure is incompatible with the Charter and must be annulled or declared invalid. Similarly, where a national measure implementing EU law—within the meaning of Article 51(1) of the Charter—fails to respect the essence of a fundamental right, that measure is to be set aside.

While generally fundamental rights can be restricted if a limitation is a necessary and proportionate measure to achieve an objective of general interest or to protect the rights and freedoms of others, a measure which trenches on the essence of the right cannot be justified in this way. As President Lenaerts puts it:

Once it is established that the essence of a fundamental right has been compromised, the measure in question is incompatible with the Charter. This is so without it being necessary to engage in a balancing exercise of competing interests. As the Schrems I judgment shows, a measure that compromises the essence of a fundamental right is automatically disproportionate.

The caselaw on the "essence" of fundamental rights is, however, notoriously terse in its reasoning, especially in relation to state surveillance. That said, we can pick out four key findings:

First, the caselaw recognises a content/metadata distinction: In Digital Rights Ireland legislation requiring telecommunications companies to indiscriminately retain traffic and location data on all users was held not to violate the essence of the right to privacy under Article 7 of the Charter on the basis that "the directive does not permit the acquisition of knowledge of the content of the electronic communications as such". (Tele2 restates this point.) Conversely in Schrems I the CJEU held (regarding US law) that "legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter".

Second, it seems clear that the caselaw requires an individual legal remedy for wrongful surveillance to include deletion of illegally obtained surveillance material; in Schrems I the CJEU held that: "legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter". (Schrems II makes a similar finding in relation to the Privacy Shield ombudsman mechanism without explicitly addressing the point.)

Third, the CJEU seems to have implicitly accepted that indiscriminate state access to metadata would not violate the essence of the fundamental rights to privacy and data protection: in Privacy International the Court assessed UK bulk collection of communications data on a proportionality basis without mentioning the question of whether bulk collection violated the essence of these rights.

Fourth, the caselaw accepts (in the two PNR cases) that indiscriminate state access to travel data does not in itself violate the essence of the fundamental rights to privacy and data protection, at least so long as that data is "limited to certain aspects of that private life" and does not "allow for a full overview of the private life of a person" (Opinion 1/15; Ligue des droits humains).

Overall, therefore, the notion of the essence of rights has played a limited role in relation to EU and Member State surveillance measures, and the CJEU has been unwilling to hold that even what it describes as "very far-reaching [and] particularly serious" interference with these rights (indiscriminate telecommunications data retention) constitutes an interference with the essence. While there are many cases invalidating EU/Member State surveillance measures on proportionality grounds, there are none which find that such measures violate the essence of the rights to privacy or data protection.

Why this reluctance? It may be that preserving institutional capital plays a role: a finding that a particular form of surveillance violates the essence of a right would be very difficult to walk back in the case of Member State pushback, while a finding of disproportionality is more easily finessed in future cases. The one area where the CJEU has found a surveillance tactic to violate the essence of a right - generalised state access to the contents of communications - is precisely the area which has not presented a significant clash with Member States, as their bulk interception activities have largely been shielded from scrutiny by the CJEU by the general exclusion of national security measures from the scope of EU law. Instead, direct Member State activities in this area have generally been assessed by the more lenient standards of the ECHR, under which the ECtHR has held that bulk interception is in principle compatible with Article 8 (Big Brother Watch; Centrum För Rättvisa).

My sense is that this position - in which the CJEU has not had to confront wider issues around the essence of the rights to privacy and data retention, particularly in relation to bulk interception - is about to come to an end.

Multiple current controversies are set to put issues about the essence of these rights in front of national courts and ultimately the CJEU. The Encrochat and SkyECC investigations are already presenting significant issues about the legality of bulk collection of communications from all users of particular services. The proposed CSAM Regulation would mandate indiscriminate examination of all communications on particular services and is certain to be challenged on that basis. The fallout from state use of spyware such as Pegasus across Europe continues. (Indeed, the EDPS has already described such spyware as threatening the essence of the right to privacy.) The EDPB has also described growing use of widescale facial recognition in public places as likely to violate the essence of the right to data protection.

What these situations have in common (with a possible exception in relation to state spyware, depending on the exact context) is that they are certainly within the scope of EU law and therefore do not benefit from the national security cloak of invisibility. It may be that some of these cases can be dealt with solely under the Law Enforcement Directive, the e-Privacy Directive, the forthcoming AI Act, or other relevant legislative measures, but it seems inevitable that the CJEU will ultimately have to address whether these types of large scale surveillance are compatible with the "essence" of the Charter rights to privacy and data retention.

Finally, I should mention an issue about procedural approaches to identifying the essence of these rights in the context of state surveillance. Some of the caselaw (such as Digital Rights Ireland and the PNR decisions) suggests that there is no breach of the essence of the right to data protection provided that the law provides some data protection safeguards, albeit that those safeguards might not be adequate. Other judgments (particularly Schrems I and II) place particular focus on the right to effective judicial protection under Article 47 of the Charter. However it seems to me that to concentrate on procedural safeguards risks conflating assessing the essence of the right with assessing the legality of the interference with the right. Article 52(1) of the Charter already provides that limitations on rights must be "provided for by law". This closely resembles Article 8(1) ECHR which provides that restrictions on the right to privacy must be "in accordance with the law" - a formula which has been used by the ECtHR in cases from Klass v. Germany onwards to read in safeguards such as independent oversight of surveillance as essential components of legality of surveillance systems. If the legality assessment already requires some procedural safeguards, then is it redundant to treat those safeguards as also making up (part of) the essence of these rights? To put it another way, what are the additional procedural or oversight elements that comprise the essence of these rights which are not required by the principle of legality?

Issues with the new Garda Powers Bill

I have a piece in today's Irish Times which identifies some serious concerns with the new Garda Powers Bill. Here's an excerpt:

The sensitivity of your phone means that this week’s proposal from the Department of Justice for a new Garda Síochána Powers Bill requires close scrutiny. That proposal would introduce a new power for gardaí, when carrying out search warrants, to demand your password or PIN and require you to biometrically unlock your phone (or tablet, or computer) using your fingerprint or face.

As well as taking a copy of everything on the device itself, gardaí could also use the device to access any other service you use – such as your webmail, cloud storage, or online banking – and then take a copy of that data also.

The way in which the searches would be carried out is concerning. Failure to comply with the demand there and then (with no right to consult a solicitor) would be an offence exposing you to immediate arrest, punishable by imprisonment for up to five years and a fine of up to €30,000. This power would also apply to the devices of “any person present at the place where the search is carried out”, including for example the parents or siblings of a suspect or someone who shares a house with them.

Full text

The GAA and the GDPR

I have a piece in the Irish Times today discussing the kerfuffle about GAA clubs using WhatsApp to communicate with members. It may be the first time the phrase "dick pics" has appeared on the opinion pages of the paper of record. Here's an excerpt:

Facebook is not providing WhatsApp for philanthropic purposes, and information about who you communicate with, how and when is immensely valuable. When it bought WhatsApp, Facebook attempted to combine that information with individuals’ Facebook activity – to build up a complete picture of your activity, public and private – despite stating to the European Commission that it would not do so. Facebook was eventually stopped by data protection authorities, and in 2017 it was fined €110 million by the European Commission for its deceptive statements during the merger. 

Nevertheless, it has stated that it still aims to use WhatsApp information for Facebook advertising, and presumably will also use your WhatsApp activity for ad targeting as it rolls out advertising on WhatsApp in 2020. 

Given the commercial value of this personal information, clubs and other groups who communicate through WhatsApp are still paying for a service – it’s just that they’re shifting the cost to their members, who pay with their privacy.

Full text

The new Irish ban on social media posts from court

I have an opinion piece in the Irish Independent on the new practice direction restricting social media posts from the courtroom. Here's an excerpt:

In 2011, the English courts introduced rules preventing anyone other than journalists or lawyers from posting to social media in the courtroom; the new Irish rules are largely identical, and seem to have been prompted now by judicial concern at both the Jobstown trial and the Belfast rugby rape trial. The #JobstownNotGuilty and #IBelieveHer hashtags show a growing popular willingness to second-guess the judicial process and this ban can be seen as a direct response.

There are certainly good reasons for banning live tweeting in some cases, particularly in criminal trials where much takes place in the absence of the jury.

However, the speech by the Chief Justice did not make the case for the blanket ban which was introduced. All the examples of abuse he gave related to criminal trials - there is no obvious reason why civil trials, which normally do not have a jury, should be treated in the same way. This is equally true of appeal courts, which hear legal argument rather than evidence, and in the UK the Supreme Court allows any person attending a hearing to live tweet except in special circumstances.

The restriction to "bona fide members of the news media profession" is also problematic. In his speech, the Chief Justice equated "hobby journalists" with "the single contrarian in a basement".

However this disregards a number of Irish and European judgments stressing the high constitutional value of citizen journalism; restricting live coverage to those who can produce traditional media credentials has the merit of administrative convenience but will limit many who could provide useful and informed coverage of proceedings.

Full text of the article.

Ireland must learn from UK data protection and ID disasters

I have a piece in today's Irish Times on the approach of the Irish state to privacy. In short: there's a lot of room for improvement. Text below with added links.

Ireland must learn from UK data protection and ID disasters

The growth of the public services card as a de facto national ID card has attracted a lot of media attention recently, with special credit due to Elaine Edwards of this newspaper for her persistence in excavating the facts on which most of the later reporting has been based.

The issue continues to rumble on, and the Data Protection Commissioner has asked the Department of Social Protection to explain the legal basis for the claim that the card is mandatory. One month later, despite repeated promises, the department has not yet done so.

More could be written about the public services card, and the varying and sometimes contradictory claims put forward to support it. But if we focus on the card we risk missing the wider picture, which is that the card is not an aberration but exemplifies a systematic disregard for privacy and data protection throughout the State.

Consider the Department of Health. In a remarkable statement to the Dáil earlier this month, Minister for Health Simon Harris admitted that Ireland “remains in breach of both European Union and national data protection legislation” by keeping a database of blood samples from newborn children without the consent of their parents. Following a complaint in 2009, the Data Protection Commissioner ordered that these samples be destroyed. However, the Department of Health has failed to comply and is instead proceeding with plans to retain the database and to open it up for research and possible other uses.

This defiance of the law raises significant questions for the independence of the Data Protection Commissioner, who has taken no enforcement action against this challenge to her statutory authority. The message to the State is that it can ignore data protection law with impunity.

Since 2014, the Department of Health has also been involved in developing health identification numbers and electronic health records schemes, which present significant issues of privacy and confidentiality. For example, by requiring the use of health identification numbers these schemes tie together potentially leak-sensitive information about an individual’s medical history, despite an earlier promise that use of these numbers would be voluntary. It is hard to trust assurances from the department on this issue given that it is already, by its own admission, in deliberate breach of data protection law.

We see the same picture elsewhere.

In 2014, An Garda Síochána started using body-worn cameras in an ad hoc way, without any legislation or formal safeguards. The Garda five-year modernisation plan says that the Garda will start taking video feeds from the National Roads Authority, local authorities and private car park operators to run automatic number plate recognition systems – creating a national database of people’s travel to be stored for an unspecified period.

That plan also says that, from 2017, the Garda will start using “face-in-the-crowd and shape-in-the-crowd biometrics” to identify people on CCTV systems. Again, all of this is to take place without any legal basis, in a manner that appears to be contrary to data protection law. It seems the Garda has not learned any institutional lessons from the 2014 scandal around the recording of calls to and from Garda stations, nor from the ongoing concerns about abuse of the Pulse system.

The common pattern in these cases is that fundamental rights are viewed as inconvenient obstacles. This is a paternalistic view, in which the institution knows best and public concern can be disregarded. However, this approach merely stores up problems for the future. There are lessons for Ireland from the UK, where many of these issues have already been played out.

In 2002, the UK government launched a National Health Service-wide electronic health records system which failed to adequately address patient confidentiality. This was eventually scrapped in 2011, in large part due to concerns about privacy, and replaced with systems which guarantee that patients can opt out of data sharing. The ultimate cost was in the region of £10 billion.

The public services card has a parallel in the UK, where ID cards and a National Identity Register were introduced by legislation in 2006, only to be abandoned and the data destroyed in 2011 following extensive public opposition. Similar to the public services card, the UK ID card had no clear rationale and was ultimately rejected by the Tory/Lib Dem coalition government as “wasteful, bureaucratic and intrusive”, at an eventual cost of about £5 billion.

The increasing Garda use of CCTV, facial recognition and number-plate recognition also echoes the UK, where both the information commissioner and the independent surveillance camera commissioner have described similar practices by UK police forces as intrusive, disproportionate and illegal.

The message from these UK examples is clear. While state authorities may push ahead with plans which ignore concerns about privacy and data protection, the law will eventually catch up with them, usually at significant cost to the taxpayer. Fundamental rights are factors which must be taken into account at the outset, not reluctantly considered when a scheme is already being implemented.

As the Data Protection Commissioner put it in her most recent annual report: “Public-sector bodies and Government departments are in many cases slow to adjust to the reality that data-protection rights cannot simply be legislated away without sufficient necessity and proportionality analysis and prejudice tests being applied.”

The failure of the State to accept these points has already squandered public trust in areas such as the public services card, and seems likely to do so in other areas such as electronic health records.

Dr TJ McIntyre is a lecturer in the UCD Sutherland School of Law, a solicitor with FP Logue Solicitors and the chair of Digital Rights Ireland

Letter regarding the Public Services Card

I'm very grateful to my colleagues who have signed a letter expressing concern at the growing use of the (supposedly optional) public services card as a mandatory requirement for essentials as passports and social welfare, creating a de facto national ID card or Ireland without public debate.

The full text of the letter and the signatories are below.

Oversight of phone tapping in Ireland: still inadequate

Following allegations of abuse of phone tapping by Irish police, I have an opinion piece in today's Irish Independent explaining why oversight mechanisms in this area are ineffective. Here's a flavour:

The reaction of the Department of Justice and An Garda Síochána to the latest phone-tapping scandal has been a predictable circling of the wagons. As usual, those bodies have refused to address the details of the allegations. We have seen generic statements, asserting that there is a legal basis for phone tapping and that it is subject to judicial oversight. 

The problem with that response is simple: it is clear that both the Irish law on phone tapping and the way it is implemented fail to meet fundamental international standards. 

Take the most basic starting point: who decides whether a phone tap should take place? International human rights law requires that interception of communications be authorised by a judge or an equivalent independent body. In Ireland, however, this power is given to the Justice Minister - leaving it open to allegations of political motivation. 

Irish law also falls down on the question of who can have their phones tapped. Contrary to international standards, there are no safeguards on phone tapping targeting lawyers, journalists or parliamentarians. 

Unusually for a Western democracy, Ireland does not have separate security and police agencies. Instead, both roles are combined in An Garda Síochána. The result is a blurring of the boundaries between the two functions which means that all surveillance ends up being concealed in unnecessary secrecy. 

The Irish oversight system is also out of line with international practice. In almost all EU member states, there are parliamentary committees which can oversee surveillance by security agencies. Ireland is one of only four EU states which does not make its security agency accountable to parliament. Instead, in security matters the Garda Commissioner answers only to the Justice Minister - the same person who is responsible for decisions to tap phones in the first place.

I've written more about the issue in the chapter "Judicial Oversight of Surveillance: The Case of Ireland in Comparative Perspective" (2016), full text online at the UCD research repository.

Back in the saddle

I'm delighted to be able to say that starting this week I'll be working as a consultant with FP Logue Solicitors. The partners - Fred Logue and Niall Rooney - have an excellent track record in business law, with a focus on brands, intellectual property, technology law and information law generally, making for a great fit with my own areas of interest. I greatly enjoy practice as well as research and teaching, and I've always found that each informs the other. Obligatory press release and group photo.