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We already wrote about how US Secretary of State John Kerry made some tone deaf remarks about "online freedom" and transparency during his appearance at the Freedom Online Coalition meeting in Estonia last week. However, it appears that his remarks fit in well with the theme of the event, which appeared to be "big governments ignoring that whole state surveillance online thing." The Freedom Online Coalition is a group of 23 governments, including the US, UK, Canada, Germany, France and many others -- and you'd think they'd pay some attention to the very vocal concerns about how those governments are engaged in lots of online spying. In fact, a bunch of public interest groups sent a letter asking the FOC to live up to their state commitments, and respond to claims of human rights violations against journalists and others via state surveillance online. But... that didn't happen:

A dominant theme that ran throughout the conference was erosion of credibility and doubt about member government follow-through on commitments to protect freedom online themselves, much less to serve as role models for other governments. Dutch Foreign Minister Frans Timmermans acknowledged the credibility gap facing the coalition and invited constructive criticism and debate about the proper limits of surveillance. Yet while the final Tallinn declaration produced by FOC governments asserted that members would “[c]ollectively condemn – through diplomatic channels, public statements and other means – violations and abuses of human rights and fundamental freedoms online as they occur in different countries throughout the world,” the declaration says little about reining in indiscriminate surveillance, nor does it acknowledge that mass surveillance chills freedom of expression and violates the right to privacy. Perhaps the Freedom Online Coalition should start exploring a name change to more accurately reflect what they really represent.

Google has been hit with a €500m (£427m) fine by France's competition authority for failing to negotiate "in good faith" with news organisations over the use of their content.The authority accused Google of not taking an order to do so seriously.Google told the BBC the decision "ignores our efforts to reach an agreement".The fine is the latest skirmish in a global copyright battle between tech firms and news organisations.Last year, the French competition authority ordered that Google must negotiate deals with news organisations to show extracts of articles in search results, news and other services.Google was fined because, in the authority's view, it failed to do this. In 2019, France became the first EU country to put a new Digital Copyright Directive into law. The law governed so-called "neighbouring rights" which are designed to compensate publishers and news agencies for the use of their material.As a result, Google decided it would not show content from EU publishers in France, on services like search and news, unless publishers agreed to let them do so free of charge.News organisations felt this was an abuse of Google's market power, and two organisations representing press publishers and Agence France-Presse (AFP) complained to the competition authority.

In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.

The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.

The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.

The European Parliament narrowly adopted a nonbinding but nonetheless forceful resolution on Thursday urging the 28 nations of the European Union to recognize Edward J. Snowden as a “whistle-blower and international human rights defender” and shield him from prosecution.On Twitter, Mr. Snowden, the former National Security Agency contractor who leaked millions of documents about electronic surveillance by the United States government, called the vote a “game-changer.” But the resolution has no legal force and limited practical effect for Mr. Snowden, who is living in Russia on a three-year residency permit.Whether to grant Mr. Snowden asylum remains a decision for the individual European governments, and none have done so thus far. Continue reading the main story Related Coverage Open Source: Now Following the N.S.A. on Twitter, @SnowdenSEPT. 29, 2015 Snowden Sees Some Victories, From a DistanceMAY 19, 2015 Still, the resolution was the strongest statement of support seen for Mr. Snowden from the European Parliament. At the same time, the close vote — 285 to 281 — suggested the extent to which some European lawmakers are wary of alienating the United States.

The resolution calls on European Union members to “drop any criminal charges against Edward Snowden, grant him protection and consequently prevent extradition or rendition by third parties.”In June 2013, shortly after Mr. Snowden’s leaks became public, the United States charged him with theft of government property and violations of the Espionage Act of 1917. By then, he had flown to Moscow, where he spent weeks in legal limbo before he was granted temporary asylum and, later, a residency permit.Four Latin American nations have offered him permanent asylum, but he does not believe he could travel from Russia to those countries without running the risk of arrest and extradition to the United States along the way.

The White House, which has used diplomatic efforts to discourage even symbolic resolutions of support for Mr. Snowden, immediately criticized the resolution.“Our position has not changed,” said Ned Price, a spokesman for the National Security Council in Washington.“Mr. Snowden is accused of leaking classified information and faces felony charges here in the United States. As such, he should be returned to the U.S. as soon as possible, where he will be accorded full due process.”Jan Philipp Albrecht, one of the lawmakers who sponsored the resolution in Europe, said it should increase pressure on national governments.