The draft Intelligence Agencies Act that has been submitted to Parliament contains a number of problematic aspects from a data protection perspective: the use of aircraft or satellites that have not been specifically authorized; the possibility of penetrating computer systems or networks; and the non-application of the Freedom of Information Acts to documents relating to intelligence gathering within the meaning of the IAA.
On many occasions we have pointed out that the draft IAA is not entirely satisfactory from a data protection perspective (cf. our 20th Report on Activities, 2012/2013, section 1.4.6, in German). The following are the three most problematic issues:
- According to the draft, aircraft or satellites may be used for observation purposes in public areas or locations that are publically accessible. Whether intended or not, images and sounds will necessarily be recorded that clearly belong to an individual's private sphere. For this reason, and also bearing in mind the most recent events in the area of international surveillance, the question that needs to be addressed is whether such actions should not be included in the list of intelligence gathering operations that require authorization. All the more so as it is extremely difficult to circumscribe the exact use of such resources.
- In addition to intelligence gathering, the draft also covers the possibility of penetrating computer systems and networks in order to disrupt, prevent or slow down access to information. We believe that this is disproportionate. Measures such as these constitute a serious infringement of an individual's fundamental rights and go well beyond the measures that are available to the law enforcement agencies.
- According to the draft, documents obtained in the context of intelligence-gathering operations within the meaning of the IAA are to be excluded from the scope of the Freedom of Information Act. We cannot agree with this (cf. section 2.5.1 of the current Report on Activities, in German, French or Italian).
We shall defend our position when the subject comes up for debate in the relevant parliamentary committees.