The European Court of Human Rights (ECHR) heard on September 24 oral arguments on whether the secret surveillance program known as the System of Operative-Investigative Measures, or SORM, used by Russian law enforcement agencies violates the human right to privacy. The judgment is expected soon, however Russian experts doubt the ECHR will put an end to the controversial program.

Complaint with the court

The Russian Constitution guarantees the confidentiality of correspondence, telephone conversations, and other types of communication. This right can only be bypassed by a court order. However, law enforcement agencies can refer to SORM to conduct electronic surveillance without prior judicial authorisation.

Roman Zakharov, an editor-in-chief of a publishing company in St. Petersburg, filed a legal challenge to the SORM program. In December he brought judicial proceeding in a Russian court against the three major telecommunications companies, MegaFon, VimpelCom and Tele2, demanding that they remove the equipment that allows law enforcement agencies to tap conversations and obtain data without a prior court permission and ensure that access to telecommunications was given to authorized persons only.

Notably, the Federal Security Service (FSB) took part in the proceedings.

Zakharov claimed that the mere opportunity of a third party to access a telephone line without a prior judicial authorization constitutes a violation of the constitutional right to privacy.

Zakharov brought the claim against Russia to the ECHR in October 2006 after the suit he filed in a Russian court was dismissed. Russian court held that Zakharov failed to argue his case, prove that his telephone conversations had been intercepted and that any protected information was transmitted to unauthorised party. Installation of the equipment to which he referred did not in itself infringe the privacy of his communications.

Russian authorities claimed during hearings in the ECHR in September that there was no evidence that Zakharov’s rights had been violated.

Russian legislation guarantees the confidentiality of telephone conversations, excludes the opportunity of an unauthorized intrusion of third parties as activities of the law enforcement agencies fall under control of the Prosecutor Generals’ Office, according to Georgy Matyushkin, deputy minister of justice and Russia's envoy to the ECHR.

Furthermore, Zakharov had not filed a lawsuit over the surveillance program with Russia’s Constitutional Court, and thus had failed to exhaust all remedies available in Russia, Matyushkin said.

Russian law is not a problem

Zakharov told RAPSI that there are no grounds for bringing the matter to the Constitutional Court as the problem is not with the Russian legislation which stipulates that tapping requires a prior court order.

Moreover, Russia’s Constitutional Court has already said in its judgment in October 2003 (Judgment No. 345-0 – RAPSI) that a court order is needed to obtain the data on a person and his or her conversations, Zakharov said. Moreover, Russia’s Supreme Court on a number of occasions provided its own explanatory notes on the matter. “In 2000, the Supreme Court directly pointed to the requirement to present a warrant for tapping to a telecommunications operator,” Zakharov said.

Boris Gruzd, an attorney for Zakharov, said that the controversial provisions were not contained in laws, but in confidential regulations of Russia's Communications Ministry. The procedures laid out in these regulations preclude any oversight of law enforcement agencies, Gruzd says. 

“No one monitors their actions to tap or otherwise intercept communications. We fully depend on their ethics and honesty,” the attorney said.
He added that there is no procedure for notifying citizens whose correspondence or telephone communications were monitored. In most European countries, an investigation concludes with either an opening of a criminal case or sending a notification to the person concerned.

Georgy Matyushkin argues that there is no point in notifications because tapping is confidential and the records are deleted if the tapping has not produced the desired results. He asserts that compliance with these requirements is ensured by the prosecutor’s offices.

Russian human rights activists believe that telecommunications companies should be more active and request a court order for tapping as they are held liable under the law for protecting the secrecy of communications. This rule is introduced in the Council of Europe’s Convention on Cybercrime, Boris Gruzd said.

An alternative option is to assign monitoring powers to an independent agency.

Tilting at windmills

The ECHR is expected to hand down its decision in the case in several months. The importance of the case is emphasized by the fact that it was referred to the Grand Chamber of the ECHR.

This prompt decision could be linked to the National Security Agency (NSA) scandal exposed by whistleblower Edward Snowden. He revealed in June 2103 that US companies had been compromised by the NSA's intelligence-gathering in PRISM program which affected Europe as well.

The ruling of the ECHR that the use of SORM violated human rights would be a step forward in the fight for the secrecy of communications at least in Europe.

Zakharov can hope for monetary compensation and, at best, review of his suit against telecommunications companies in Russian court.

The ECHR cannot oblige Russia to amend its legislation or to invalidate regulations of the Communications Ministry. Anyway, the ruling of the ECHR would hardly change the practice of an unauthorized tapping in Russia. 

Moreover, Russian authorities have strengthened control over citizens’ communications. Under new amendments to the law Russia’s Central Bank was authorized to request any information from telecommunications companies to prevent insider trading. Law enforcement agencies were given opportunity to scrutinize activities of social network users under recent amendments to the law.