Mass surveillance has already been ruled to be in contravention of the Human Rights act:

https://en.wikipedia.org/wiki/Article_8_of_the_European_Conv...

>A 2014 report to the UN General Assembly by the United Nations' top official for counter-terrorism and human rights condemned mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions and makes a distinction between "targeted surveillance" – which "depend[s] upon the existence of prior suspicion of the targeted individual or organization" – and "mass surveillance", by which "states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites". *Only targeted interception* of traffic and location data in order to combat serious crime, including terrorism, is justified, according to a decision by the European Court of Justice.[23]

The loophole there is "targeted" so they'll declare that Son of Chat Control is to be targeted.

A decision by the European Court of Justice or any other court does not apply to any legislative branch like the EU commission (not parliament), when making new laws. New laws simply override old laws (to be interpreted as specializations, more or less exceptions, to the old laws)

That's not true, because there is a hierarchy of legality.

If a principle of the EU legal order is at stake, such as the right to privacy, then that constitutional imperative can very well override a new law.

The commission and parliament are well aware of this risk. They often choose to have laws advised on by the courts, in advance. To avoid a legal mess.

This is normal in a functional democracy. To avoid abuse of power / overreach by any institution.

Yeah the whole thing is full with these loopholes. Your rights are rights only as long as we wish at some point to add laws that inhibit them.

It's weird how "rights" went from "the government can't do X to you" to "the government can force private actors to do Y (but these rules don't apply to us)."

Maybe it's because rights should be "government CAN do X to you", and whatever isn't listed in rules government CANNOT do?

Basically a useless document.

Companies like Flock and Clearview have set up gigantic dragnets in the US.

I'm not happy with everything the EU does, but to call it useless is to be ignorant of the rest of the world.

It's perfectly sufficient to have laws against that sort of thing. As governments are above the law (in that they can just add new laws that say they can do whatever they want), you need something else. A bill of rights is such a something else.

Good god what a meaningless "right" where all of the exceptions eat the rule.

The way it's written and the way ECHR court works, the government has to actually argue it's way, not just say "national secirity".

ECHR court however can't repeal the law, only fine the governmemt for actual violation of convention rights.

Is there any mechanism for preventing the introduction of a law that violates the ECHR? It would seem obvious that that should be the case, no?

Not under ECHR, which has twice as much signatories as EU has members and the other half is twice less chill compared to the EU.

I don't remember whether the EU top court can repeal EU laws, but general answer is no. It's politics -- if the government is full shitheads that somebody voted for and then haven't protested hard enough to boot out -- then they can ignore constitution, jail judges, behead journalists in a forest and send army to shoot at protesters of the wrong kind.

Do EU treaties per se contain any language that might be relevant to privacy?

It seems axiomatic that legal systems contain provisions that prevent their violation. However, democracy requires that laws are voted on by elected representatives or plebiscites, which can of course mean repealing prior laws.

However the EU institutions are not sovereign, which might be the loophole here?

Edit: I'm aware that the EU is only afforded "competences" given to it by treaties, so perhaps human rights don't fall into any of these...?

However, I also wonder if legislation such as Chat Control, etc, might fall outside its competences.

In the end, the question is whether there is a legal mechanism by which the introduction of laws such as those in question here can be prohibited?

There is no loophole really, EU can repeal it's own laws the same way it passes them -- it needs to get the commission, the parliament and enough national governments on board.

>Do EU treaties per se contain any language that might be relevant to privacy?

Doesn't matter really. No right in any treaty is absolute. Not even the right to life itself -- the police can and does shoot people and it's legal for them to do under specific conditions. And of course the chat control law says that whatever it is supposed to be doing should be done in the most privacy respecting way possible.

In theory the court (any court really) can weight whether the measures are proportionate and whether negative obligations (not invade privacy) are in a balance with positive obligations (you know -- protective children is also important) and whether the balance is appropriate of a democratic society.

The problem everybody is trying to not see - there is no right to E2E encryption under any law right now. There is no right to have a communication channel that government can't possibly listen to. It's not a thing. The same way there is no right to have your house unsearchable by police and your freedom unbound by a court that can jail you. There are strict limits when any of those things happen, but they do fact happen all the time for good reasons and for bad ones too.

Add: if I would attack it from a legal standpoint, I would not focus on privacy so much, but rather say that creating mass-scaning capability is a threat to the democracy itself.

Most rights are held in balance, as you describe.

However, mass surveillance cannot reasonably be held in balance with detection of crimes, as most people are not criminals

It's not that I like chat control or think that mass surveillance can lead to any good.

What I'm saying, is -- just because the balance isn't where you want it to be, and the policy is bad, that alone doesn't mean the law is unconstitutional, against the EU treaties or ECHR or should be impossible to pass through the legislative.

It's just bad because it's bad.

That's what I'm wondering too. I still hold out hope that the EU and the ECJ cannot override the fundamental rights guaranteed by the constitutions of the individual member states.

It is generally assumed that the ECJ has ultimate precedence over national constitutional courts, but I have my doubts. As a thought experiment, imagine it wasn't the EU, but the Chinese CCP with whom the treaties were concluded. It then quickly becomes clear why a national constitutional court fundamentally cannot accept the unconditional transfer of jurisdiction to a foreign entity.

The German Federal Constitutional Court (BVerfG) already stated in its judgment on the Public Sector Purchase Programme (PSPP) that it is prepared to intervene in the event of an exceeding of competences (ultra vires). Furthermore, the BVerfG has repeatedly defended the fundamental rights to privacy against the government in the past. I am relatively certain that the warrantless chat control would not succeed at the national level in Germany. The question is how the BVerfG will react if the ECJ gives the green light to chat control. As I said, I still have hope.

In this regard, note that the EU can only propose legislation that falls under one of its "competences". For example, national militaries, income tax, education, most of foreign policy, etc, do not fall under EU control.

The ECHR itself is independent of the EU, it is national governments that have signed up to this treaty.

So perhaps the EU institutions do not need to directly refer to the ECHR, only national governments should???

.... It would be interesting to hear knowledgeable legal opinion in this!

>So perhaps the EU institutions do not need to directly refer to the ECHR, only national governments should???

Correct. EU is not a party of the convention, member states are, so EU law can be ruled on by ECJ and national law and actions of national governments by ECHR.

Then at the end of the day it's the national government that would look at your chats and "I'm just following EU law" would not be an especially great excuse for the ECHR court.

It depends the version of the declaration, the french one has zero exception listed.

It's the same in French (obviously), though equally this does not permit mass surveillance:

>Article 8 de la Convention européenne de sauvegarde des droits de l'homme et des libertés fondamentales:

>Droit au respect de la vie privée et familiale

>1. Toute personne a droit au respect de sa vie privée et familiale, de son domicile et de sa correspondance.

>2. Il ne peut y avoir ingérence d'une autorité publique dans l'exercice de ce droit que pour autant que cette ingérence est prévue par la loi et qu'elle constitue une mesure qui, dans une société démocratique, est nécessaire à la sécurité nationale, à la sûreté publique, au bien-être économique du pays, à la défense de l'ordre et à la prévention des infractions pénales, à la protection de la santé ou de la morale, ou à la protection des droits et libertés d'autrui.

—

I'm talking about the 1948 version which has the following:

> Article 12

> Nul ne sera l'objet d'immixtions arbitraires dans sa vie privée, sa famille, son domicile ou sa correspondance, ni d'atteintes à son honneur et à sa réputation. Toute personne a droit à la protection de la loi contre de telles immixtions ou de telles atteintes.

And that's it, no other additions.

> arbitraires

That's the key word.

Since all chats would be monitored regardless of the citizen, this fullfills the definition.

Is that the same France which arrested the CEO of a E2E chat provider (without even trumped up charges) and forced them to make backdoors for them?

I never said the country follows it though

ECHR is a convention with a court hearing the cases, as opposed to declarations which is just good vibes PR. Of course the actual working instrument has loopholes.