When Edward Snowden leaked the details of secret US intelligence and monitoring programs, the fallout was guaranteed to make for interesting law. With details emerging about potential monitoring internationally by the US, including within Europe, it now looks like the courts might have a more direct role in influencing how the law is shaped in this area.
Two French campaign groups have announced they are pursuing legal action, in the wake of revelations by Edward Snowden over alleged US intelligence snooping. Concerns were raised by the data leaked by Snowden, suggesting that French citizens may have been the subject of close state monitoring as a result of the controversial Prism surveillance and monitoring program.
The action was raised by the French Human Rights League and the International Federation for Human Rights against the FBI, National Security Agency and online sites alleged to have helped facilitate the tracking of individual citizens. But to what extent should and can this level of state scrutiny be tolerated? Is the compromise in privacy too high a price for national security, or should governments avoid intruding on the personal lives of the majority?
The case alleges that data is being collected and accessed fraudulently, and reflects the sincere anger felt by the groups concerned. The possibility of support for US surveillance measures in France has led to the action, amid a recent low in relations between the US and the EU more broadly.
Prism was a program administered by the National Security Agency, with a view to collecting information on potential threats to US security. It relies on monitoring usage and data across a range of websites, which it is alleged provides access to intelligence essential in the fight against terrorism. However, the debate about privacy and national security is a fine-line, particularly given the constitutional importance given to the freedom of the individual.
Some of the greatest unease at the Prism program has arisen in Europe, where there have been suggestions of information sharing with the US authorities. In some territories, this would even contradict local laws, and there have been tangible diplomatic consequences. In France, the courts will rule on whether individual human rights have been breached as a result of these alleged data exchanges.
The case may one day end up in front of a European court in Strasbourg, which would in itself be regarded as an embarrassment for the US authorities. However, there is no guarantee that the European legal position would differ from the US position. Some European states, in particular the UK, are said to have similar snooping programs.
The issues surrounding closer surveillance and monitoring pose unique legal challenges thanks to the development in the technologies available. This has proven captivating for legal experts, such as Allison Spinner, Partner at WSGR. Surveillance is now possible to degrees that would be fantastical just a few decades ago, and the technical resources open to security services and law enforcement make it possible to drive real results.