Limiting mass surveillance in Russia

Can states use ‘national security’ as a justification for mass surveillance? Do we need to prove our own communications have been monitored to argue a violation of privacy?

Order no. 70 of the Russian State Committee for Communications and Information Technologies, issued in 1999, required phone companies to install equipment that would allow the state direct access to their networks.

In 2003, Roman Zakharov, the editor-in-chief of a Russian publishing company, and Chair of the Saint Petersburg branch of the media freedom NGO Glasnost Defence Foundation, brought legal proceedings against three mobile network operators, the relevant ministry and the Russian spy service, the FSB. His claim of a breach of his right to privacy was rejected by the Russian courts.

The case

In 2005, working with Russian partner lawyers, we took Roman’s case to the European Court of Human Rights (ECtHR).

In December 2015, the Grand Chamber of the ECtHR found that the Russian legislation had resulted in a violation of Roman’s right to private and family life. The judgment highlighted that, even though he was unable to claim that he had been the subject of surveillance, the very existence of the legislation amounted to an interference with his rights. The ECtHR found that the Russian legislation on surveillance of mobile telephones failed to provide for ‘adequate and effective guarantees against arbitrariness and the risk of abuse.’

What this litigation achieved

The Zakharov judgment had consequences for state surveillance across the Council of Europe.

In its judgment, the ECtHR recognised the importance of the theoretical threat to an individual’s privacy where secret legislation opens the door to widespread surveillance. The Court was unequivocal: inadequate and ineffective regulation of secret surveillance risks destroying democracy.

This judgment was particularly timely, as it was published a month after the UK Government’s Draft Investigatory Powers Bill. As noted by Open Democracy, the Zakharov judgment clarified that a request to authorise surveillance ‘must clearly identify a specific person to be placed under surveillance or a set of premises as the premises in respect of which the authorisation is order.’ Surveillance must remain necessary and proportionate. There are significant risks to allowing states access to telecommunication networks.

The refusal by the Russian authorities to confirm whether Zakharov had been subject to surveillance limited his ability to challenge this in the domestic courts – the ECtHR judged this as a failure to provide an effective remedy.