When discussing digital rights and privacy on the internet, many people instinctively feel well-protected by our laws against intrusions. Yet, a surprising number remain unaware of their fundamental rights, leaving them vulnerable to political encroachments on their digital freedoms. Such encroachments include:

  • Data Retention: The warrantless storage of everyone’s telephone conversations and emails.
  • Government Trojans: Deploying malware without a judicial order for individual surveillance.
  • Chat Control: The ongoing monitoring of our chats.
  • Weakening Secure Encryption: Efforts by global political entities to bypass or outlaw secure end-to-end encryption.

This article provides an insightful overview of the fundamental rights that underpin our digital freedoms, and explains why even these rights can be subject to legitimate or questionable restrictions. It also sheds light on the surveillance debates currently raging in the EU.

Which Rights Do We Have?

In the European Union, the Charter of Fundamental Rights and the General Data Protection Regulation (GDPR) are the bulwarks defending our online privacy and digital rights. They offer a comprehensive shield for citizens’ rights in our increasingly digital world. This section delves into the EU-level fundamental rights, their implications, and the constraints they might encounter in the realm of online privacy and security:

  • Private and Family Life Respect: Article 7 ensures the protection of individuals’ private lives, emphasizing the sanctity of personal data.
  • Data Protection: Article 8 underscores the necessity of fair, consent-based personal data processing, advocating for transparency and the right to data access and correction.
  • Liberty and Security: Article 6 protects against arbitrary interferences, highlighting the importance of legality in information collection and detainment practices.
  • Freedom of Expression: Article 11 champions the uninhibited flow of information and ideas, crucial for a vibrant democratic society.
  • Right to Effective Remedy: Article 47 guarantees judicial recourse for rights violations, reinforcing the judiciary’s role in upholding justice and fairness.

These fundamental rights, though paramount, are not unfettered and can be curtailed under stringent conditions, provided such restrictions are lawful, necessary, and proportionate.

Balancing Act: The Interplay of Rights and Restrictions

Fundamental rights, the essence of individual autonomy, coexist with a framework of social security and welfare. The legislative power to restrict these rights, albeit with the intention of safeguarding the public interest, carries the risk of abuse, where vague threats such as terrorism or cybercrime become pretexts for excessive surveillance.

The principles of proportionality, necessity and transparency must guide legal restrictions to prevent the erosion of our democratic freedoms. The enduring challenge is to reconcile individual rights with collective security, ensuring that neither is compromised at the expense of the other.

Current Surveillance Measures in the EU: A Closer Look

While the EU’s legal structure robustly protects privacy and security, the real-world enforcement of these rights varies widely across member states. In particular, some national laws violate European digital rights, although they may later be invalidated by the European Court of Justice, thus preserving digital autonomy.

Here is an analysis of current and proposed EU surveillance laws, which are notorious for undermining fundamental freedoms without conclusively improving security.

  • Data Retention: A contentious issue, the EU is grappling with the legality of storing data without specific justification, a practice that threatens privacy and trust without clear security benefits.
  • Government Trojans: The controversial surveillance tool that poses serious risks to privacy and the integrity of communications systems.
  • BND Surveillance Expansion: The BND’s expanded surveillance capabilities are prompting crucial debates about the balance between security measures and fundamental rights.
  • Encryption risks: EU initiatives to weaken encryption directly challenge fundamental rights to privacy and data protection, potentially jeopardizing the entire digital security landscape.

Sources, Tips and Links for Further Reading

“Every Human”, , Six New Fundamental Rights for Europe, Ferdinand von Schirach, 01.12.2022