Opinion: Why is government pursuing extensive surveillance law in crisis? ({{contentCtrl.commentsTotal}})

Karmen Turk, one of the two lawyers questioning the basis of potential expanded state surveillance rights during the coronavirus pandemic.
Karmen Turk, one of the two lawyers questioning the basis of potential expanded state surveillance rights during the coronavirus pandemic. Source: ERR

Lawyers have questioned a bill which the government has submitted in response to the coronavirus pandemic, saying it may make wide-ranging surveillance independent from legal practices to date, a new norm in Estonia.

The draft, number 170SE and entitled "Assistant police officers act and other law amendments act" (Abipolitseiniku seaduse ja teiste seaduste muutmise seadus) gives the state more scope for processing personal data than ever before, the two lawyers, Karmen Turk and Maarja Pild of law firm TRINITI, said, and expands prerogatives in a number of other areas too.

The bill amends an existing act, the Assistant Police Officer Act and, as its name suggests, other acts as well.

In an opinion piece published in daily Eesti Päevaleht (link in Estonian),
the lawyers said that the bill's explanatory memorandum seeks to supplement the Emergency Act with a clause giving the state general powers to process personal data for emergency measures, while the broad wording of the provision would mean no measure or action is inapplicable due to the absence of a clear legal basis.

The question first arises, the lawyers say, as to why a situation should occur where there was no legal basis for any transaction with personal data in the first place.

The question first arises, the lawyers say, as to why a situation should occur where there was no legal basis for any transaction with personal data in the first place.

Current law does not impede coronavirus emergency measures

They added that pre-existing personal data protection rules do not hinder combating the virus if the measure is proportionate, since current law does not require individual consent in the event of an epidemic or pandemic, leave alone an emergency.

Turk and Pild also emphasized that the new norm will certainly not give the state a golden ticket to effect without a legal basis, as any law must have a basis. This may also be included in the emergency laws, but must in any case be in line with the constitution. The basis must be precise and explicit, necessary and proportionate, they said.

General normw in emergency situation not a general legal basis themselves

Turk and Pild state that, in their view, the authors of the draft, or at least the explanatory memorandum, assume that the general rule is the new "legal basis", which they say is unacceptable. 

"The general norm planned within the Emergency Act on the processing of personal data does not in itself provide grounds for invading privacy and processing personal data," they said.

The lawyers also noted that, according to the explanatory memorandum on the processing of personal data, the State may "(...) process personal data for other activities necessary for the resolution of the emergency, and not related to the application of the emergency measure",

However, this is not possible, as the state acquires extended rights for the application of the emergency measure and other actions necessary for resolving the emergency alone - but not for activities which are not related to resolving the emergency.

ECHR suspension a help

The lawyers also questioned why the state plans to keep personal data collected for up to one year, noting this is in clear contradiction with guidance issued by the European Data Protection Board on March 19 and which, while it encourages Member States to make use of Artile 15 of the ePrivacy Directive, should also be necessary, appropriate and proportionate in a democratic society, and be limited to the duration of the emergency situation.

The explanatory memorandum also contains wording which implies individuals may be secretly monitored without their knowledge, the lawyers said, adding that the suspension of the European Convention on Human Rights (ECHR) which the state carried out on March 20 –(though this reached the media around a week later-ed.) would help implement many of the points contained in the bill.

The explanatory memorandum also contains wording which implies individuals may be secretly monitored without their knowledge, the lawyers said, adding that the suspension of the European Convention on Human Rights (ECHR) which the state carried out by triggering Article 15 of the convention on March 20 –(though this reached the media over a week later-ed.) would help implement many of the points contained in the bill.

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Editor: Andrew Whyte

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