In an Opinion and press release issued 15 December 2015, the European Data Protection Supervisor (EDPS), Giovanni Buttarelli, urged caution over the trade and use of covert monitoring technologies. The Opinion focussed on those surveillance tools which are designed, marketed and sold for mass surveillance, intrusion and exfiltration. It warned that more needs to be done to address how the market for surveillance technologies is monitored and the safeguards in place; otherwise the Digital Single Market will not be able to succeed.

Concerns over surveillance technologies relate to the potential they have for human rights abuses through their ‘dual’ use. It is widely accepted that surveillance technologies can be used as legitimate instruments by law enforcement authorities; however, they can also be used to circumvent security measures in electronic communications and data processing. This tension may be considered a challenge to an individual’s fundamental rights; for example, the protection of the personal data and privacy. The EDPS also raises concern over EU regulation as it “fails to fully address the issue of export of all ICT technologies to a country where all appropriate safeguards regarding the use of [such] technology are not provided”.

The EDPS calls for a co-ordinated approach to deal with the “very real threat posed to our privacy and data protection rights” by such technologies. The Opinion sets out a number of recommendations, including:

  • Reviewing and increasing existing EU standards for the protection of human rights
  • Laying down appropriate regulation to govern the use and dissemination of surveillance and interception tools and services
  • Developing consistent and more effective policies regarding the export of intrusive technologies
  • Investing in Internet security and privacy by design initiatives

In light of the EDPS’ Opinion, the forthcoming General Data Protection Regulation, and cyber security legislation on the horizon, an increasing spotlight will likely be placed on the use of such technologies over the coming year.