Comment by narmiouh
1 day ago
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
1 day ago
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.
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)
You're fuzzing the crucial distinction between well defined and narrowly tailored exemptions, which are of course normal, and these exemptions, which are complete blank cheques that effectively neuter the rule they attach to.
No laws are absolute, some laws are more holes than cheese, but a law that says "A government must not punish you for doing X, except in accordance with duly passed criminal laws that make X illegal" is almost entirely pointless. It exists solely to make people feel fuzzy when reading the first half of the sentence, which is the only part you'll ever hear quoted, while not actually impeding anything a government may wish to do to you. This is intentional. Those carte blanche exemptions do not consistently appear across international human rights treaties by some accident.
1 reply →
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 ...
Secrecy of correspondence doesn't necessarily only apply to physical letters as far as Constitutions go. In Finnish constitution it is defined as "The secrecy of correspondence, telephony and other confidential communications is inviolable" meaning it also applies to any internet message.
Unfortunately large majority of parties in Finnish Parliament do not really care about that provision and have passed multiple laws which create exceptions to it. They do it via the proper protocol (which is essentially the same as modifying the Constitution itself) so it's technically legal.
Secrecy of correspondence still has exceptions. That's what is always lost in these discussions -- every right of every person is not absolute. Just because you have a right to personal property, doesn't mean you don't have to pay taxes or store nuclear material in your basement. That's the hard part.
But end to end encryption with forward secrecy at no cost to user makes your right to private communication absolute. It's a new thing and the balancers can't balance it against other rights of other people, so this happens.
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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.