The Article 29 Working Party has adopted an opinion on surveillance of electronic communications for intelligence and national security purposes. This follows the publicising over the past year of mass surveillance activities carried out by EU and US governments. The Working Party firmly opines that terrorism or other threats to national security do not justify secret, massive, indiscriminate and systematic surveillance of EU citizens, which interferes with their fundamental rights and is illegal under EU legislation. The opinion sets out recommended measures for EU governments and institutions to take in order to further privacy and data protection in this context.

The Working Party calls for transparency on how surveillance programmes work in order to increase trust between citizens, governments and private entities. It suggests the provision of better information to individuals when intelligence services access information and welcomes a proposed provision in the data protection reform package supporting this. The Working Party advocates for independent supervision of intelligence services, including through the involvement of national data protection authorities, to give more meaningful oversight to surveillance. The opinion encourages member states to use existing data protection legislation to enforce rights, for example, by suspending data flows and issuing sanctions where appropriate. It also suggests that the scope of the national security exemption be clarified. The Working Party further recommends the negotiation of an international agreement providing for privacy and data protection in relation to intelligence services.

The press release accompanying the opinion highlights the coincidence of the recent European Court of Justice ruling declaring the invalidity of the EU Data Retention Directive (2006/24/EC) (see Legal update, ECJ declares Data Retention Directive invalid). The Directive permits blanket government surveillance of communications data. For further information on data protection, see Practice note, Overview of EU data protection regime.

Source: Article 29 Working Party press release and Opinion 04/2014 on surveillance of electronic communications for intelligence and national security purposes, 10 April 2014.