In South Africa there are specific provisions allowing the electronic surveillance
in the event that there are grounds to believe that there is a potential threat to national
security.
138
In France, there is a specific law on electronic surveillance of international
electronic communications.
139 Additionally, the French Code of Internal Security
provides for the electronic surveillance of individuals who may represent a serious
threat to public order. The French Code of Defense also has provisions which ensure
the security of national information systems. The French Criminal Procedures Code
provides for specific provisions regarding the implementation of electronic surveillance mechanisms. This implementation is subject to the approval of the Minister of
Justice.
In the United States, the Foreign Intelligence Surveillance Act (hereinafter FISA)
provides for the legal framework for conducting foreign intelligence gathering for
national security threats, while maintaining the secrecy of the respective investigations.
140 After the National Security Agency’s programs on data collection became
public on 2013, the USA Freedom Act of 2015 was enacted in order to set out some
limits to the collection of data permitted under the USA PATRIOT Act, prohibiting
the bulk collection of US call metadata and telephonic records.
141
The restrictions to personal data protection for security and defense purposes vary
significantly in all the analyzed legal systems, either in terms of the type of
restrictions allowed, the requirements to implement them, the extent of those restrictions, or the competent authorities to supervise their implementation.
138 See the South African National Report, Sect. 4.4.
139 See the French National Report, Sect. 5.
140 See the United States of America’s National Report, Sect. 5. The federal legislation on intelligence gathering for security and defense purposes has been highly criticized, both at a national level
and at an international level. In the recent history of the United States of America, there have been
several cases in which the means and methods used by the Government in this context were
questioned. The Echelon case, involving authorities of several other countries as data controllers,
is one such case, which determined a strong reaction from the European Parliament—see the Report
on the existence of a global system for the interception of private and commercial communications
(ECHELON interception system) (2001/2098(INI)). More recently, the Prism case has reignited the
debate on the topic. It has also resulted in a strong reaction from the European Parliament—see the
Report on the US NSA surveillance program, the surveillance bodies of various EU Member States
and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in the areas of
Justice and Home Affairs (2013/2188(INI)). The Article 29 Data Protection Working Party has also
issued an opinion on this topic—see the Opinion 04/2014 on the surveillance of electronic
communications for intelligence and national security purposes, adopted on 10 April 2014. On
this, see Edgar (2017).
141 See the United States of America’s National Report, Sects. 5.1 and 5.2.
Data Protection in the Internet: General Report
29
in the event that there are grounds to believe that there is a potential threat to national
security.
138
In France, there is a specific law on electronic surveillance of international
electronic communications.
139 Additionally, the French Code of Internal Security
provides for the electronic surveillance of individuals who may represent a serious
threat to public order. The French Code of Defense also has provisions which ensure
the security of national information systems. The French Criminal Procedures Code
provides for specific provisions regarding the implementation of electronic surveillance mechanisms. This implementation is subject to the approval of the Minister of
Justice.
In the United States, the Foreign Intelligence Surveillance Act (hereinafter FISA)
provides for the legal framework for conducting foreign intelligence gathering for
national security threats, while maintaining the secrecy of the respective investigations.
140 After the National Security Agency’s programs on data collection became
public on 2013, the USA Freedom Act of 2015 was enacted in order to set out some
limits to the collection of data permitted under the USA PATRIOT Act, prohibiting
the bulk collection of US call metadata and telephonic records.
141
The restrictions to personal data protection for security and defense purposes vary
significantly in all the analyzed legal systems, either in terms of the type of
restrictions allowed, the requirements to implement them, the extent of those restrictions, or the competent authorities to supervise their implementation.
138 See the South African National Report, Sect. 4.4.
139 See the French National Report, Sect. 5.
140 See the United States of America’s National Report, Sect. 5. The federal legislation on intelligence gathering for security and defense purposes has been highly criticized, both at a national level
and at an international level. In the recent history of the United States of America, there have been
several cases in which the means and methods used by the Government in this context were
questioned. The Echelon case, involving authorities of several other countries as data controllers,
is one such case, which determined a strong reaction from the European Parliament—see the Report
on the existence of a global system for the interception of private and commercial communications
(ECHELON interception system) (2001/2098(INI)). More recently, the Prism case has reignited the
debate on the topic. It has also resulted in a strong reaction from the European Parliament—see the
Report on the US NSA surveillance program, the surveillance bodies of various EU Member States
and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in the areas of
Justice and Home Affairs (2013/2188(INI)). The Article 29 Data Protection Working Party has also
issued an opinion on this topic—see the Opinion 04/2014 on the surveillance of electronic
communications for intelligence and national security purposes, adopted on 10 April 2014. On
this, see Edgar (2017).
141 See the United States of America’s National Report, Sects. 5.1 and 5.2.
Data Protection in the Internet: General Report
29