The Chilling Effect of Counter-Terrorism Measures: A Comparative Analysis of Electronic Surveillance Laws in Europe and the USA
Josep Casadevall, Egbert Myjer, Michael O’Boyle (editors), “Freedom of Expression – Essays in honour of Nicolas Bratza – President of the European Court of Human Rights”, Wolf Legal Publishers, Oisterwijk, 2012, pp. 463-481
12 Pages Posted: 3 Nov 2012
Date Written: October 23, 2012
Electronic surveillance is an important tool for law enforcement and may contribute to counter-terrorism efforts. The present article examines, from a comparative privacy perspective, systems of electronic surveillance which involves the retention and/or access of large quantities of data and/or communication. This includes data retention of traffic data and signals intelligence, the latter occasionally described as mass surveillance or strategic monitoring. It is concluded that the Fourth Amendment to the United States Constitution offers a greater protection than Article 8 of the European Convention for the protection of Human Rights (ECHR) to the extent that searches and seizures require probable cause and a warrant. This requires that the measure is covered by the notions “search” or “seizure”, which may explain why law enforcement agencies which use warrant-less surveillance tend to define the notions “search” or “seizure” narrowly. This has implications for the content/non-content distinction. The constitutional protection under the Fourth Amendment has an all-or-nothing character. In comparison, Article 8 of the ECHR does not require probable cause and warrant but it has a broader scope. Thus, there is no problem to expand the scope and protection of Article 8 to content as well as traffic data.
Keywords: Electronic Surveillance, Privacy, Signals Intelligence
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