Finland: New surveillance law threatens fundamental rights

Finnish EDRi member Electronic Frontier Finland (Effi) is gravely concerned over a draft law on Internet surveillance. The bill that the country’s current government is in the process of preparing will grant the military and the Finnish Security Intelligence Service (Supo) the authority to conduct electronic mass surveillance for military and civilian intelligence purposes. On 1 October 2015, four ministers held a press conference to announce the bill. What they said did nothing to allay fears regarding the upcoming law.

Especially worrisome are the government’s increasing indications that Finland’s constitution will be altered to permit mass surveillance by the country’s intelligence service. To have the constitutional protection of the secrecy of communications weakened or even denied in order to make way for mass surveillance is unprecedented in Finland.

“Minister of the Interior Petteri Orpo simply stated in his opinion that the prospective law does not pose a danger to an ordinary person,” said Effi’s Executive Director Nomi Byström. “Surely the minister would not imply that for example the mass surveillance revealed by Edward Snowden did not pose any threats to citizens, would he? I very much hope that Finland will not end up having such collaboration with the US National Security Agency (NSA) that Finns will be subjected to the abuses on a similar scale, or that no other organ will adopt similar methods and obstruct the rule of law. Especially, I hope that no country or its intelligence agencies are seeking to pressure Finland in the preparation for the bill.”

There are extremely worrisome cases of inefficient, intrusive mass surveillance in the world which, while being useless, have succeeded in violating fundamental rights on a massive scale. In Finland, matters have not been helped due to the current secrecy regarding the advancement of the bill.

“The preparations have taken place behind closed doors, and at a scarily fast pace,” said Tapani Tarvainen, Vice Chairman of Effi. “Now the government has promised to introduce more transparency. I hope this is what will actually happen, and that the citizens’ point of view will also be genuinely heard during the entire drafting process, instead of just presenting the country with a ready-made package to be either accepted or rejected.”

Finland should focus far more on data security. In the United States, despite widespread mass surveillance, the data of over twenty million employees were hacked in the OPM scandal, and the fingerprints of over five million people were stolen due to inadequate data security. In Finland it was revealed in late 2013 that the Ministry for Foreign Affairs had been subject to cyber espionage. This too could have been prevented with proper data security. An effective law on data security would far better address key concerns that legislation on mass surveillance is now expected to solve.

From the point of view of citizens’ rights, the essential elements that the prospective law is to pay heed to are:

1. Warrants permitting surveillance that may be granted to the Finnish Security Intelligence Service (Supo) are to be based on a valid criminal suspicion. Supo already has extensive powers to gather intelligence regarding suspects. Any extension of powers should be linked to a warrant based on suspicion, and warrantless surveillance is not to be permitted. Existing legislation, such as the Coercive Measures Act, is sufficient.
2. The suggested legislation should respect fundamental civil rights; particularly the rights to confidential communications, privacy, data protection and the freedom of expression. These rights are protected by the constitution of Finland, Charter of Fundamental Rights of the European Union, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights. Also the Court of Justice of the European Union (CJEU) ruled in the Digital Rights Ireland case in April 2014 that mass collection and retention of data without a valid criminal suspicion violates the principle of proportionality.

A collision between the constitution and the proposed law is to be expected. However, to draw the conclusion that it is the constitution that should give way is both misleading and dangerous. An ordinary law is not – and should not be – on a par with the constitution. To undermine the constitution in favour of legalised mass surveillance will have major destabilising consequences that are far wider than are now either understood or taken into consideration. However, even if the constitution was to be altered, there is no escaping the fact that the country is bound and must respect its international human rights obligations as well as the EU Charter of Fundamental Rights.

“Minister of Transport and Communications Anne Berner stated during the press conference that the same rules that we follow in the real world also apply in the digital world. And she is entirely right: Just as it is not acceptable to systematically open the envelopes of all snail mail letters to search for possibly suspicious words in them, analysing the contents of electronic communications should not be permissible either,” stated Effi’s Chairman Timo Karjalainen.

Surveillance law threatens fundamental rights (only in Finnish, 02.10.2015)
https://effi.org/julkaisut/tiedotteet/tiedustelulaki-uhkaa-perusoikeuksia-2015-10-02

The Constitution of Finland
https://www.finlex.fi/en/laki/kaannokset/1999/en19990731.pdf

(Contribution by Nomi Byström, EDRi member Effi, Finland)