Some tiny Saturday thoughts on today’s Page 1 scoop by Karlin Lillington re the state’s creation of a new statutory framework for secret Ministerial surveillance orders and, quite seriously, for FISA-style secret court hearings.
1) The Minister has activated a law that has been overtaken by events.
2) The Department of Justice has claimed the SI was signed to comply with EU treaty obligations.
3) But since 2008, when the law was drafted, EU law has been transformed in its approach to privacy, surveillance and rights.
4) Since then, the EU Charter of Fundamental Rights, DRI’s ECJ judgement and even the Google Right To Be Forgotten case mean that the balance struck between privacy and surveillance in the 2008 Act is no longer an obviously lawful approach.
5) Far from complying with EU Treaty obligations, the State may have exposed itself to a challenge under those same Treaties.
6) The 2008 Act should be rewritten to allow for orderly Mutual Legal Assistance Treaty co-operation, but maintaining EU citizens’ privacy and data rights.