Comment by triska
1 day ago
Quoting from the Charter of Fundamental Rights of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12... :
"Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority."
It clearly states here in 2 “consent of the person concerned OR some other legitimate basis laid down the law”, any random law will trump personal consent
One of the reasons international human rights law is so worthless in actual practice, is that half of it is framed like this. "Everyone has the right to X, except as duly restricted by law." Cool, so that's not a right at all then.
Ditto the Canadian Charter of Rights and Freedoms, with its 'notwithstanding' clause. (Though they're presently litigating over that, so we'll see what happens!)
Any constitution or human rights instrument full of exemptions, 'emergency powers', 'notwithstanding' clauses, or 'states of exception' is not worth the paper it's written on.
Every contract I have to agree to these days has a "valid until unilaterally invalidated" clause. It feels like we're all just going through the motions.
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That's why countries like Austria have enshrined the Human Rights Charter into constitutional law, meaning only other law at constitutional rank could potentially conflict with such clauses. You can get your own country to do it, too.
That is in fact the only way most laws work: freedom of movement, except if you’re arrested and detained in accordance with law. Freedom of speech except when you are falsely yelling fire in a crowded theater or slandering someone. In general all rights have exceptions carved out by law. And any way you carve that exception out (eg to cover those convicted of crimes) can be twisted by a legislature or judicial body that wants to act in bad faith.
(That’s not to say laws shouldn’t make a better attempt to circumscribe exceptions)
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Even if the law included the literal phrase "Congress shall make no law" or "shall not be infringed", there would still be carve-outs and exceptions deemed acceptable and non-infringing because at the end of the day it's the government, and they'll do what they want, because who exactly is going to stop them?
It doesn’t remove the “right to the protection of personal data concerning him or her.” The law cannot be random, it must ensure “fair processing” and be limited to “specific purposes”, and the European Court of Justice as well as the ECHR will decide what constitutes a “legitimate basis” in that context. Furthermore, “Everyone has the right of access to data which has been collected concerning him or her”, which ensures transparency of what is being collected.
Last but not least, a number of EU countries enshrine https://en.wikipedia.org/wiki/Secrecy_of_correspondence in their constitution.
Secrecy of correspondence only applies to sealed physical letters, so it has zero applicability to this law and provides zero protection against scanning of private messages.
Also it isn't respected in most types of criminal trials. If a sealed physical letter is opened and proves fraud, for example ...
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No, not any random law. To the extent the relevant law-making is within EU's competence (ie excluding certain areas like national security and similar), the general framework for rules on the processing of personal data has been laid down by the GDPR (and for law enforcement related stuff, a similar Directive[1]), in particular, considerably restricting, limiting and in part downright precluding national law-making within that legislative and policy area, including eg the legal bases available for in-scope processing activities (Art 6 GDPR, also Art 9 for certain sensitive data categories).
Anyway, as far as human/fundamental rights go, the encryption and related issues in Chat Control tend to fall more on the Article 7 side of the Charter[2] like many similar questions related to different forms of (mass) surveillance, secrecy / confidentiality of (electronic) communications, including related national regimes with often diverse jurisdiction-specific histories, etc.
[1] The main difference between a Directive and a Regulation under EU law is that a Directive requires implementation on the national level to work properly (ie national legislation, usually with some room for discretion and details here and there), while a Regulation is directly binding and effective law in member states wholly in itself.
[2] And similar/corresponding language in the European Convention on Human Rights (ECHR), including the related case law of the European Court of Human Rights (ECtHR). While these are not EU institutions, European human rights law is recognized and applied as constitutional / fundamental rights-level law both by the EU and member state courts.
I feel we need something much more strongly worded to protect our mail, paper or electronic, messages and other communications from being read, not just “respect”.
This exists in a number of EU member states: https://en.wikipedia.org/wiki/Secrecy_of_correspondence
The problem is, in all of those member states, they all have carve outs for "national security."
Germany, for exmaple, has secrecy of correspondence that extends to electronic communications, but allows for "restrictions to protect the free democratic basic order" and outlines when intelligence services can bypass the right to privacy.
Italy, France, and Polan also have similar carve outs.
Having it as a right isn't enough. National security and "public safety" carve outs need to be eliminated. So long as those exist, we have no right to privacy.
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Let's parse this a little.
Article 7 codifies "respect for [one's] private life" and "respect for [one's] private communications". Well, "respect" is a vague notion. This does not clearly imply that the government is not allowed to read your communications, or otherwise spy on you, if it believes it has good reason. It will do so "respectfully", or supposedly minimize the intrusion etc.
As for article 8: Here it is "protection of personal data" and "fair processing". It does not say "protection from government access"; and "processing" is when the government or some other party already has your data. In fact, as others point out, even this wording has an explicit legitimization of violation of privacy and 'protection' whenever there is a law which defines something as "legitimate basis" for invading your privacy.
You would have liked to see wording like:
* "Privacy in one's home, personal life, communications and digital interactions is a fundamental right."
* "The EU, its members, its bodies, its officers and whoever acts on its behalf shall not invade individuals' privacy."
and probably something about a non-absolute right to anonymity. Codified exceptions should be limited and not open-ended.
> This does not clearly imply that the government is not allowed to read your communications, or otherwise spy on you, if it believes it has good reason. It will do so "respectfully", or supposedly minimize the intrusion etc.
Which is... okay? Government gonna government, that's what we pay it to do.
[dead]
You know that those pieces of paper mean nothing.
The Charter has been used by the courts to shoot down incoming legislation. So, in a way, those pieces of paper mean everything, as without them legislation would pass without the judiciary branch being a check on the Bloc’s powers. Your comment is merely cynical.
In theory these limit the power of the EU, while anything the EU parliament passes can just be undone as easily by a future EU parliament. If you don't believe the EU charter provides any protection, why would you believe an EU law would be any different?
Thank you for telling them. Governments do not care about anyone.
In theory, governments are made up of citizens. In practice, once the citizens are corrupted into corporate shills, they become politicians. They have traded their humanity for business class seats and dining at restaurants that cater to those whose entire personality is talking about their investment portfolio.
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