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European Court of Human Rights bans weakening of secure end-to-end encryption (eureporter.co)
1673 points by robtherobber 12 months ago | hide | past | favorite | 258 comments



For a better understanding: The Court held (in the circumstances of this case) that a legal obligation to decrypt E2E communications is a disproportionate interference with the right to privacy. The law in question specifically obligated messengers such as Telegram to hand over communications alongside the "information necessary to decrypt electronic messages if they were encrypted".

To come to that conclusion, it referred to the wide-scale impact such a weakening of E2E through backdoors would have and referred to "calls for alternative 'solutions to decryption without weakening the protective mechanisms, both in legislation and through continuous technical evolution.'" Looking at the cited material, these include traditional policing, undercover operations, metadata analysis, international police cooperation, live forensics on seized devices, guessing or obtaining private keys held by parties to the communication, using vulnerabilities in the target’s software or sending an implant to targeted devices.

While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mechanism for all users". If I were the UK government, I would be quite worried that the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling.

(It should be noted that, although the backdooring of E2E was considered to go beyond how the right to privacy may legitimately be restricted, the right to privacy is a so-called derogable right, i.e. a government can, upon declaration of a state of emergency, derogate from the right insofar that is necessary to address an emergency "threatening the life of the nation" (Art 15 ECHR))

Relevant paragraphs are paras 76-80 here: https://hudoc.echr.coe.int/eng/#{%22itemid%22:[%22001-230854...}


>While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mechanism for all users". If I were the UK government, I would be quite worried that the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling.

It's worth noting that UK courts can't overturn Acts of Parliament.

The best they can do is issue a declaration of incompatibility, which enables ministers to use secondary legislation to correct any defect rather than having to go through the process of passing another act (if they have the political will to do so...).

Having said that, a lot of how the Online Safety Act tries to get things done is through secondary legislation and statutory codes and guidelines; these all can be quashed by the courts (unless the Act constrains the way the other instruments are made in such a way that it'd be illegal not to make an infringing instrument) so it'll be interesting to see how that plays out.


I wholeheartedly recommend How Parliament Works¹ for people who want a deep dive on these points. It is nowhere near as dry as you'd imagine for a five hundred page book about parliament.

While used copies are super cheap I'd also recommend picking up a current revision. Recent years have seen far more use(or attempts to use) some of the more obscure tools of both houses. The updates include more explanation of those topics, along with descriptions of recent cases before the courts.

¹ https://www.amazon.co.uk/dp/1032015012


The best isn't necessarily a declaration of incompatibility, that's mostly specific to ECHR.

In general if parliament passes legislation that contradicts earlier legislation that wasn't repealed and it wasn't deliberate then a judge can determine that parliament didn't intend to override that earlier legislation and that the new legislation doesn't apply in a given context.

Parliamentary supremacy exists, but only where parliament takes a deliberate action.


> Parliamentary supremacy exists, but only where parliament takes a deliberate action.

Well, it exists under English law, it is an open question whether it exists to the same extent under Scottish law. As Lord Cooper said in the 1953 case of MacCormick v Lord Advocate, "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law". Lord Cooper suggested that, at least in theory, an Act of the UK Parliament could be ultra vires under Scottish law if it were contrary to the Treaty of Union. In the 1975 case of Gibson v Lord Advocate, Lord Keith suggested that possible examples of such invalid Acts might be a hypothetical Act to abolish Scottish law and replace it with English law, or a hypothetical Act to establish the Church of England (or the Scottish Episcopal Church) as the state church in Scotland, usurping the traditional role of the Church of Scotland; although he refrained from definitively ruling on those questions (since the outcome of the case at hand did not depend on them).


> It's worth noting that UK courts can't overturn Acts of Parliament.

Interesting. I didn't know this, and as an American, it seems quite odd. Decisions by the parliament are treated as immutable there?

Here, if a bill passed by Congress is deemed unconstitutional, it can be struck down by the Supreme Court.


The only constitution that the UK has consists of Acts of Parliament. So I don't know why it should seem odd; the US courts can't strike clauses of the US Constitution, and the UK courts can't strike Acts.

Amusingly, the UK government is currently trying to pass an Act to the effect that black is equivalent to white, i.e. that Rwanda is a safe country to which asylum seekers can be sent. This is analogous to the State of Indiana trying to legislate that the value of Pi shall be 3.2. You can't legislate a fact.


It's definitely odd! That's not a reason for UK courts not to strike down acts, or more properly, to have judicial review.

Take Canada. Canada has a Supreme Court and no written constitution. The formal divorce between Canada and the UK was not long ago so we inherited the same legal framework (modulo Quebec but it doesn't play a role here). Yet the Canadian Supreme Court can and does strike down federal laws! Actually, provincial courts can too, and then the federal government gets to appeal to them to the Supreme Court if it wishes.

Take Israel. There's no written constitution. Just the Basic Laws. They're just laws, they can be amended at any time. Yet, the Supreme Court can and does strike down laws. It's even striking down changes to the Basic Laws. That's part of the current political strife.

There is a worldwide movement for judicial review. Usually, supreme courts start with conservative powers and then grow them. Judicial review is not explicitly called out in the US constitution either. The US Supreme Court had to assert that it can strike down unconstitutional laws. This took about 15 years and some careful wrangling. The particular argument of Marbury v. Madison doesn't apply to the UKSC of course.

But there are already law review articles spelling out other legal theories that could be used to assert that the UKSC has the power to strike down Acts. I suspect the UKSC will follow other supreme courts and free themselves of Parliament in the coming decades.


Canada's constitution has written and unwritten parts. The Constitution Act of 1982 (which includes the Charter of Rights and Freedoms), for example, is a written part of Canada's constitution. Changing the charter would require the procedure for constitutional change, which is rather difficult. It's not something that can be amended like a normal act of the parliament.


That's fair. I was using the term "written constitution" from the perspective of a US reader.

There's no document that says "I'm the constitution, that's it".

Canada works under the idea of an open constitution. There's a collection of documents that become entrenched and are considered part of the constitution. There are endless debates about exactly which documents should be considered.

Since the amending formula has made changes impossible, basically all we can do is hope the Court will expand the constitution in a way that serves the public.

It's unclear that we really wanted to give the Supreme Court this power. And some argue that this makes the Canadian Supreme Court the most powerful one in the world. Certainly not even the US Supreme Court can decide the contents of the Constitution, only its interpretation.

And that's before we get to Quebec and their crazy theory about what section 45 means which would make the whole idea of a constitution a mess.

And of course, we're not going to mention the notwithstanding clause.


> There's no document that says "I'm the constitution, that's it".

Umm section 52(2) of the constitution act? I mean,i guess that is not exhaustive, but its most of it.

> There are endless debates about exactly which documents should be considered.

I think you are significantly overstating that. There is some debate, but its mostly theoretical and rarely comes up in practise.

> Since the amending formula has made changes impossible

Its not easy but its not that hard, just nobody agrees on anything. The process for ammending the canadian constitution is roughly the hard as the american one (except for stuff to do with the monarch). Americans need 75% of states, we need 70% of provinces which must contain 50% of the population. Basically the same.

> And of course, we're not going to mention the notwithstanding clause.

What about it? I might personally not like it, but i don't see how it confuses anything in the constitution.


For those that aren't up on their Canadian law and wondering what the "notwithstanding clause" is--

The notwithstanding clause allows a government to make a law "notwithstanding" parts of our Charter of Rights and Freedoms.

The only thing it would take for the federal government to remove the freedom of the press is to pass a law explicitly declaring it it is being removed notwithstanding section 2 of the Canadian Charter of Rights and Freedoms. That law now does not violate the Charter, however it is time limited to 5 years, which is the maximum length that parliament can remain in power without an election at which point it would need to be renewed.

The main things that cannot be overridden this way are our right to vote, that legislative assemblies must be re-elected at most every five years, that legislatures must sit every year, and that we have the right to move within or enter and leave Canada.

The original idea was that this provided a balance against the judiciary. Even if the court were to declare something violated our rights, the legislature could just say "okay, we acknowledge that and pass it anyway". The primary balance against this being abused is simply that it would be unprecedented and everyone's scared to touch the "nuclear" button. The federal government has never invoked this clause.

The only reason I can see to "not mention the notwithstanding clause" is because it directly contradicts the idea of the Canadian Supreme Court being the most powerful in the world. Except in a handful of very specific situations, their power is to declare something unconstitutional or against our rights at which point the legislature can simply shout "NO U" and it's in force anyway.


> The only thing it would take for the federal government to remove the freedom of the press is to pass a law explicitly declaring it it is being removed notwithstanding section 2 of the Canadian Charter of Rights and Freedoms

IANAL and not sure how the implied bill of rights works in the modern context, but historically laws restricting the freedom of the press have been struck down even without the charter

E.g. https://en.wikipedia.org/wiki/Reference_Re_Alberta_Statutes

However, The main thing i was trying to say though was simply that the rules around the notwithstanding clause are really clear. I think the original poster was trying to say is that what is constitutional can be ambigious, but the notwithstanding clause doesn't really contribute to that as it is pretty unambigious in how it works.


> or more properly, to have judicial review.

I think that in the UK, judicial review doesn't apply to Acts of Parliament. It applies to administrative decisions, so things like employment tribunals, benefits decisions, medical decisions and so on. Judges aren't supposed to be able to reverse legislation (although, in practice, they can fatally undermine it).


The Supreme Court of Canada does not strike down federal laws. It follows section 52 of the written constitution [0] that states the following.

  52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
All the SCC can do is rule whether or not a law (of any jurisdiction, including federal, provincial, or otherwise) is consistent with the Constitution of Canada. If a law is not consistent with the constitution, then the law has no force or effect, according to the law. That's not "striking down", since the inconsistent law or portion thereof was never valid in the first place.

[0] https://laws-lois.justice.gc.ca/eng/Const/page-13.html#h-59


That's what "striking down" a law is. Even in the US!

From the Opinion in Murphy v. National Collegiate Athletic Association:

> And courts do not have the power to “excise” or “strike down” statutes. See 39 Op. Atty. Gen. 22, 22–23 (1937) (“The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute”); Harrison 82 (“[C]ourts do not make [nonseverable] provisions inoperative . . . . Invalidation by courts is a figure of speech”)

Which then goes on to cite this Virginia Law review that goes into detail about the confusion between the terminology vs the reality: https://www.supremecourt.gov/opinions/URLs_Cited/OT2017/16-4...

> But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.

That being said. You said the written constitution of Canada. From both the UK and the US perspective that's really confusing. Canada's constitution is partly written and partly unwritten and slowly expands over time as other documents are entrenched.

From the US perspective, the Canadian constitution isn't the same kind of entity as the US constitution, it's just an Act of Parliament. From the UK perspective this means that anything goes because obviously Parliament should get to change its Act as it wishes (one of the core tenants is that past Parliaments cannot bind future Parliaments).

Anyway. That's how striking down laws works.


> that Rwanda is a safe country to which asylum seekers can be sent

Putting aside whether the UK government's approach is a sensible one (which in my view it isn't) we should be aware that:

"the UNHCR, with financial support from the EU, has transferred refugees from Libya to Rwanda under a scheme called the Emergency Transit Mechanism (ETM) [..] The ETM offers vulnerable refugees, taken into detention by the Libyan authorities, a choice to have their application processed in Rwanda."[0]

"In 2019, the [Rwandan] Government established the Emergency Transit Mechanism (ETM) Centre that hosted 824 refugees evacuated from Libya. Currently, the transit centre hosts 371 evacuees while working on long-term solutions continues. By the end of 2021, 462 refugees had resettled to third countries so far."[1]

So Rwanda was apparently safe enough for the UNHCR to offer to process some refugees there.

[0] https://www.bbc.co.uk/news/uk-politics-67431602

[1] https://www.unhcr.org/uk/countries/rwanda


The UK courts partly relied on evidence that those asylum seekers were not always treated in accordance with the convention. The Supreme Court judgment noted cases of refoulement (expulsion to the state the asylum seeker is fleeing from) as well as structural deficiencies in the decision-making process. (https://www.bailii.org/uk/cases/UKSC/2023/42.html at paragraphs 89 and onwards).

They also suggested that the UNHCR was mostly processing applications for asylum in third countries for ETM evacuees. An obvious difference with the UK scheme is that we expect Rwanda to grant asylum themselves.


> So Rwanda was apparently safe enough for the UNHCR to offer to process some refugees there.

I think the key word here is safer. It wasn’t safe by any definition of the word, but a fair deal safer than the place they came from.


> It wasn’t safe by any definition of the word, but a fair deal safer than the place they came from

(Playing devil's advocate) why would this not also apply to those refugees fleeing to Europe?

Isn't Rwanda "a fair deal safer" than Afghanistan? (This is a genuine question)


When they are being removed from the UK to Rwanda (which is the aim of UK government), "the place they came from" is the UK.


Q: Is France "safe" compared to the UK?


What does this have to do with anything?

The reason people are trying to get to the UK from France (and other countries) is they are trying to apply for asylum in the UK. Not in France, in the UK. And the reason they have to do that in the UK is the fact the UK cancelled the possibility to apply for asylum at its embassies. So if you don't want people coming from France to ask for asylum, enable the option to apply at the embassy and you are done. Simple, and you will save many lives.

Now of course the same applies to all western countries. There are lots of people trying to come here, some for legitimate reasons, some not, and also we need some of them because of shortage of workers, even if we don't say it loud, because even more would try to come. All western countries allow to apply for asylum only on their soil, thus creating a humanitarian catastrophe, because while the right to asylum is enshrined in the Universal Declaration of Human Rights, it does not say how hard can it be to apply.

But all of this is to say it does not matter whether France is or is not a safe country. We could arrange for international cooperation where asylum seekers could ask for asylum and while their application is processed they would stay in some safe country, but next to no safe country will do this because of internal political reasons, so what remains is treating asylum seekers like hot potatoes and not people. It's a sad state of affairs, but there are too many factors and no easy way to direct the blame.


> The reason people are trying to get to the UK from France (and other countries) is they are trying to apply for asylum in the UK

Why is applying for asylum in the UK more appealing to them than applying for asylum in France?

> But all of this is to say it does not matter whether France is or is not a safe country

If we accept that France is a safe country then doesn't it follow that there is no need for anyone to cross the English channel in a small boat in order to claim asylum?

Unless of course you are someone who is being persecuted by the French and are therefore seeking safety with the English, but since it's been over 200 years since those two countries were at war with each other so that sounds somewhat unlikely.

Gerald Knaus[0] observed last year that although there is a right to asylum, there is no right to migration[1].

[0] https://www.esiweb.org/esi-staff/gerald-knaus [1] https://www.zeit.de/politik/ausland/2023-11/asylpolitik-asyl...


> Why is applying for asylum in the UK more appealing to them than applying for asylum in France?

I don't really care about that. There are plenty of people applying for asylum in many countries.

> If we accept that France is a safe country then doesn't it follow that there is no need for anyone to cross the English channel in a small boat in order to claim asylum?

No, this is not how this works. You can't force them to apply in France. They are people and they have their rights. And France is a sovereign country, you can't force them either. Maybe you could try to negotiate with France and the EU, like the EU negotiated a deal with Turkey, but I understand currently UK prefers to do questionable deals with Rwanda before engaging with EU members.

> there is no right to migration

Of course, that's not an open question.


> No, this is not how this works.

I fear this attitude is partially responsible for the fall in support for what I guess we can call "centrist" parties. The harder this issue is pushed, the more the radical parties win support.

> You can't force them to apply in France.

"The Dublin Convention covering the European Union stipulates that asylum seekers are returned to the country where their entry into the union was first recorded, and where they were first fingerprinted"[0]

Well, perhaps not UK -> France thanks to Brexit, but according to the Dublin convention you certainly can return them to the first safe EU country in which they were recorded.

See "Asylum Shopping"[0] - a term for the practice by some asylum seekers of applying for asylum in several states or seeking to apply in a particular state after traveling through other states.

"In Ireland, two-thirds of asylum seekers whose applications failed were found to be already known to the British border authorities, a third of the time under a different nationality, such as Tanzanians claiming to be fleeing persecution in Somalia"[1]

[0] https://en.wikipedia.org/wiki/Asylum_shopping [1] https://www.independent.ie/irish-news/two-thirds-of-failed-a...


> I fear this attitude

I understand that, but it's not like the governments wouldn't like this issue to go away; things really don't work the way some people would like, for very fundamental reasons, like human rights.

> Well, perhaps not UK -> France thanks to Brexit

exactly.

> according to the Dublin convention you certainly can return them to the first safe EU country

Yeah, and so what does a YOLOing country like Hungary do? Exactly, it does not register them and just ignores them so they can go to the next country. So what do you do when you are next in the line like Slovakia, my home country? Exactly, you just pass them on till they get to their target country (Germany mostly in our case). This also happens in thousand-strong waves.

So again, it's not like the UK is unique in this, it's an issue in all of Europe and the US and there are no easy solutions. Even a fascist like Meloni does not have a solution.


US Courts can strike down clauses in the constitution.

Any amendment that deprives a state of its senators is unconstitutional.

Many states have “unconstitutional amendment clauses.”


In the US, it's quite hard to change the constitution. It requires agreement from 2/3rds of Congress followed by ratification by the individual legislatures of 3/4ths of the states. Such a thing has not been done since 1992, and not on a politically charged question since 1971.


> Such a thing has not been done since 1992

We’re a 235-year old republic. Changing the firmware once every 10 to 15% of the time seems fine.

> and not on a politically charged question since 1971

This is a feature. If a question is charged it should be resolved first federally, through the states, and then politically, via the legislature. Only once there is consensus should it be elevated to Constitutional status. That is the only way to get a Constitution Americans believe in with intergenerational force.


The problem is that in reality it gets “resolved” through the executive branch or by legalisating from the bench. That ultimately degrades all political institutions.

Can FBI arrest you for marijuana possession in a state where weed is “legal”? It should arrest you, weed is illegal, the government just decided to not enforce its own law. The government can just say “It will not be a priority to use federal resources to prosecute X”[1] and everyone is ok with that.

If even simple laws get bent so easily, what’s left of the constitution? The words inside the Commerce Clause stayed the same for hundreds of years, yet what it “means” (ie how it’s used by the Federal Government to assert its power) have changed profoundly [2].

[1] https://web.archive.org/web/20091023034358/http://www.reuter...

[2] https://en.wikipedia.org/wiki/Commerce_Clause


I believe that a constitution should get a full rewrite once every 50-60 years. That's to only way to ensure that the constitution remains legitimate and relevant.

The US does not really have a constitution. There is a set of documents that claims to be the constitution, but it's so out of date that it can't serve as one. Then there is the Supreme Court, which can change the actual constitution easily with its creative interpretations. Because there is no need for a widespread consensus for changing the constitution, its legitimacy remains questionable at best.


The Constitution is a divining rod to cut through hundreds of years of patchwork caselaw and legislation. Its true use is in a psychological "what would God/The Constitution want?" sense.

Does it make rational sense? Not really, but my reading of history shows a stronger national identity if tied to something "beyond." Whether that be God, Pharaoh, the Founding Fathers, what have you.


>Its true use is in a psychological "what would God/The Constitution want?" sense.

That's its purpose as the holy writ of the civil religion of the United States. And indeed, the Supreme Court derives their authority to judge the Constitutionality of matters from, in essence, divining the will of the Prophets (Founding Fathers) in interpreting this divine scripture. And as with the Pope, they remain infallible even when they contradict themselves, as well as unaccountable.

However, my reading of history has shown that strong national identities built around the worship of state and national myths tend towards dark and bloody ends.

In reality, The Constitution is what it is. A 200 year old legal fiction. A compromise between flawed, mortal men written to serve the needs of an agrarian society far closer to medieval than modern, created with the expectation that times and needs can change.


You cannot use that process for constitutional questions.

Consider the dispute in the USA over the correct intepretation of the 2nd Amendment. A state (such as NY) implements legislation embodying that state's interpretation of the amendment. SCOTUS rules that the legislation in fact violates the amendment. No change is possible until the constitution is changed ... or the composition of the SCOTUS is modified, and a new court decides that stare decisis is not relevant, which leads to a different type of change to the constitution: interpretation.

The only way to change the actual text of the constitution is to change the constitution, and that does not require consensus, just a super-majority.


And given that the point of a constitution is to set the bounds within policy-making takes place, rather than to enact policy on any specific issue, this is a very important thing.

Past attempts to shoehorn answers to specific policy questions into the constitution have been disasters, but even if they hadn't been, using constitutional amendment as a vehicle for policy is effectively the same as having no constitution at all.


There is also a convention of the states that can change the constitution. It has been talked about by various groups from time to time, but has never happened.


Are you sure? Isn't that how the ban on alcohol was lifted?


There are two types of constitutional convention.

State ratifying conventions, which you are correct is the way that the 21st amendment was ratified by the states after having received a two thirds majority in congress: https://en.wikipedia.org/wiki/State_ratifying_conventions

Article V conventions, which replace the legislature stage but then need to be ratified by the states either by the legislatures or by a state ratifying convention: https://en.wikipedia.org/wiki/Convention_to_propose_amendmen...

the latter has never happened and the constitution is very vague about what they would entail, and I think is what the earlier poster was referencing (there has been some recent noise around them)

this graphic is quite helpful: https://en.wikipedia.org/wiki/State_ratifying_conventions#/m...


Ban on alcohol was lifted by 2/3 of each house approving. Instead of going to the state legislators, it went to state conventions convened specifically for that purpose.


good question. I'm not clear after reading Wikipedia how that happened. US congress called for this which is how amendments are normally handled, but then it seems to have done something weird.

I'm not interested enough in the question to dig deeper to figure out what is what. I'll leave this as a "I stand corrected" but if you care do dig deeper.


> The only constitution that the UK has consists of Acts of Parliament.

That's not completely accurate. The UK has an unwritten constitution, consisting of how everybody knows things work.


Unfortunately we've seen several times recently that not everyone "knows" things work the same way. A lot of what is "known" might be accepted by Parliament and our courts today but has historical foundations that we might generously call shaky if you look more closely into their origins.

If you're claiming to be a democracy but no-one really knows exactly what your constitutional foundations and system of government are and there is no clear mechanism for the people to change them then are you really a democracy or are you just playing one on TV?

For now we have a system where we elect MPs using a deeply flawed voting method on a timetable that MPs themselves can change any time they like, those MPs then result in a Prime Minister being appointed, that Prime Minister then forms a government in largely presidential fashion, the members of that government with executive authority wield much of the real power despite being at least three degrees removed from any popular mandate, and the main check to prevent this system running wild is a second house that is unelected and increasingly consists of political cronies with no particular qualifications except being mates with a previous Prime Minister.

this_is_fine.jpg meme


pi is objective.

Lets be objective here for safety:

https://www.numbeo.com/crime/compare_countries_result.jsp?co...

Rwanda is safe


Numbeo lists no sources, is not peer reviewed and provides statistics to questions such as "Worries home broken and things stolen".

Perhaps not a valid source then? Objectivity does not come from a website.

edit: the data comes from visitors to the website.


"Safe" is a judgment call, the value of pi is not.


They aren't immutable, but they can only be changed by Parliament:

"the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution"

https://www.parliament.uk/about/how/role/sovereignty/


The idea is once the Crown issues letters patent, it’s the law.

In the recent past, legislation was reviewed for constitutionality by a committee in the House of Lords, called Law Lords.

In the 2000s, the Law Lords were rebranded as the “UK Supreme Court”.

But the idea is still that once the legislative process is done, the result is a law.


Judicial review isn't necessarily an obvious or completely desirable concept. It's not in the US Constitution either, and Marbury v. Madison is still somewhat controversial.


From the outset, officials in all branches of government have sworn an oath to uphold the constitution in the conduct of their duties, and the constitution explicitly states that it is the supreme federal law, so it seems that Marbury vs. Madison would follow logically from the justices' obligation to only issue rulings consistent with the constitution as they understand it.

One could regard the legislature as having an equivalent duty to refrain from enacting statutes incompatible with the constitution, and the executive as having an equivalent duty to refrain from enforcement actions inconsistent with the constitution, but historically, the judiciary seems to have been the only branch to take its duty seriously.


Parliament is sovereign. Basically, as long as Parliament says so, it can do what it wants, although it can be slowed down by institutions like the Supreme Court or the royal family. There is no real separation powers.

Which _sounds_ bad, but the UK has an extremely long history of relative stability compared to basically anywhere else on the planet, so something must be going right.


> Which _sounds_ bad, but the UK has an extremely long history of relative stability compared to basically anywhere else on the planet, so something must be going right.

The more I learn about British history, the more I think this reputation for stability is merely due to how well all the civil wars (and parliament inviting in a new royal family) were brushed over.


When was the last time the British had a civil war or invited in a new royal family? Having issues hundreds of years ago hardly seems worthy of denying the stability of a country. Many countries have come into existence and no longer exist in that same period of time.


> When was the last time the British had a civil war

1998: https://en.wikipedia.org/wiki/The_Troubles

If that's sub-threshold for you, I'd also add the 1919 to 1921 Irish War of Independence as, likewise with the Troubles, it was part of the UK at the time.

Personally, I would also argue that almost all of the independence movements in the former colonies count as examples of the governments of the UK being "not stable" even though those colonies were outside the nation itself, and that would even extend to cases like Malta where independence happened peacefully after a proposal to give them a seat in Westminster, and not just cases like Cyprus where they used guns to kick us out and yet somehow the British Sovereign Base Areas are still there.

> or invited in a new royal family?

1689, which you may feel is a while ago now, but the USA Revolutionary War was 1775, and proportionally speaking that invitation was only 34% longer ago than the formation of the USA, so I wouldn't call it an "extremely" long history relative to that… even if you don't want to count the Revolutionary War itself as an example of instability in the British government, which I would as the British was the other party in that conflict.


I don't really consider the Troubles to be a Civil War. Even Wikipedia is making a distinction and calling it an "irregular war" or "low-level war".

So the last time a civil war happened was 100 years ago. That seems decently stable. The war itself was quite minor as well. Wikipedia says 2300 people died with 900 of them being civilians. A two year war with less than 1,500 soldiers dying isn't exactly that unstable. It is more of a dust up (I understand it is causing all sorts of conflicts even to this day).

When it comes to Cyprus and the like I don't really call it unstable. Did Cyrpus leaving cause any issues to the UK? Would the average person have even known where Cyprus is located let alone what was happening? Calling it a civil conflict or whatever may be technically correct but feels different. English isn't even an official language of Cyprus (I assume it was back when the UK was in charge?). People in the UK probably didn't have family in Cyprus. People a thousand miles away leaving isn't that big of a deal.

As for the US Revolutionary War, there were 10s of thousands dead from the war. This was more than just a dust up. How is a few hundred years not a long history? I've seen some estimates that say the average existence of a country is 150 years.


> That seems decently stable

What I'm arguing against is the claim "the UK has an extremely long history of relative stability compared to basically anywhere else on the planet".

For that, "decently stable" isn't good enough, it has to be remarkable stability.

> Did Cyrpus leaving cause any issues to the UK?

Given this happened during the collapse of the British Empire, it's difficult to say exactly what fraction of the many issues facing the UK in that era were due to any specific one of the many things that changed in rapid succession. For example, the Cyrpus conflict began before the Suez Crisis, but continued for several years after.

However, the continued presence of the air bases suggests that it was considered important by the UK government.

> English isn't even an official language of Cyprus (I assume it was back when the UK was in charge?).

English was the sole official language during British colonial rule and the lingua franca until 1960, and continued to be used in courts until 1989, and in legislation until 1996.


Britain went 10 years without a general election from 1935 to 1945.

By the time the 1945 election came around, nobody under the age of 31 had ever voted.


This stability presupposes a presence of adults in the room.


It's sometimes described as the 'good chap' theory of governance. Everyone is expected to be a gentleman, so flexibility is possible with an absence of formal guardrails.

It obviously handles capture by bad faith actors fairly poorly; the hope is that such people or movements can be stopped before they get that far. Johnson was pretty marginal as a PM from this point of view.


Thanks, haven't heard of the 'good chap' theory of governance before. Lovely name that emphasizes how inadequate such system is in the 21st century. Or perhaps it was never adequate:

https://www.prospectmagazine.co.uk/politics/37844/has-the-go...


> Decisions by the parliament are treated as immutable there?

Yes, and no.

Parliament is sovereign -- it is the supreme legal authority.

But it cannot bind its successors. So any law parliament creates, any decision can be overturned by a subsequent parliament.


Is that not similar to how the US constitution is managed? It was amended and latter un-amended in the case of prohibition (18th and 21st amendments)


The "parliament cannot bind its successors" principle was absolutely (and deliberately) imported into US law, yes.

It's more general -- no branch of government can bind its own successors. (With the exception of e.g. presidential pardons which cannot be undone)


I think this is generally true? It’d be weird if there were some laws from 30 years ago that nobody wanted, but were not legally allowed to be changed. You’d just change them anyway and nobody would care.


It's generally true precisely because British parliamentary democracy formalised the concept, mind you. Before that, yes, rulers made laws that would perpetually benefit them and their successors.


Yeah, I don't think it's quite as simple as commentators are making out, because ECJ rulings have roughly constitutional-level effects in disapplying Acts.


only because Parliament allowed it to be so by passing the European Communities Act 1972

this power was removed by one line in the European Union (Withdrawal) Act 2018:

> The European Communities Act 1972 is repealed on exit day.

https://www.legislation.gov.uk/ukpga/2018/16/pdfs/ukpga_2018...


Yup, that's because the UK doesn't have a constitution.


Well it does, in written bits in various places, and some as precedent.

However it is a bit more complex. England has a constitution (that collection above), Scotland has a different (and somewhat incompatible) constitution.

The incompatibility being where the seat of Sovereignty lies. In Scotland with the people, in England with the Monarch (but wrested away by Parliament).

So when the two countries formed the new state of Great Britain, and dissolved their prior states, they granted it a minimal constitution. However they couldn't grant more than they had, and the Scottish grantors did not hold sovereignty. Hence claiming that UK Parliament is sovereign is to presume that England annexed Scotland.

That continuing incompatibility is (IMO) why we've never had a single written GB/UK constitution, and probably never will. It will require addressing the fact that we're acting as if Scotland was annexed, and to put that in writing will cause its own problems.


It doesn't have a codified constitution in the US sense but it does have a constitution:

https://en.wikipedia.org/wiki/Constitution_of_the_United_Kin...

Edit: I would certainly agree that having constitution in this form isn't a great idea...


Frankly, the US system isn't exactly a resounding vindication of written constitutions either. Arguably the UK system has displayed considerably greater flexibility. For example the US president is still basically an elected George III.


A written constitution doesn't really seem to work out better, though, does it?


Prefacing this with the fact that I never had a good feel for UK law due, in part due to it being a common law system vs. the common law system I’m more familiar with on mainland Europe. Plus, I’ve not kept up with what, if anything, the UK maintained concerning supranational jurisdiction after Brexit.

That said, what you describe is similar to that of some EU countries. Take the Netherlands for example.

In the Netherlands, courts can’t test laws passed by the Dutch parliament to the Dutch constitution. Even the Dutch Supreme Court doesn’t have that power (and Dutch legal scholars will therefore deny that the Dutch Supreme Court is a so-called “constitutional court” like the Germans have, for example).

Still, in practice, this is a non-issue because the legal hierarchy places international and EU law above Dutch law, making it the supreme law of the land.

Subsequently, this allows Dutch courts to test against international and EU law, which, for the most part anyway, have similar provisions to that of the Dutch constitution when it comes to (human) rights.

I suppose the question I’m asking is if in practice, the situation is the same or similar in the UK?


As a canadian, this is interesting, because i always thought our system was a copy of the UK system, but our courts strike down laws for being unconstitutional all the time.


It is a copy. The UK has a constitution. The UK constitution just isn't a simple document one can hang on the wall. The UK constitution is a body of knowledge and traditions. Recognize and do something a particular way for a few hundred years and it can become constitutional irrespective of whether it was nicely codified in a single document.

One can even say that the US and Canadian constitutions don't actually say all that much. They survive because they are so open to interpretation by courts ... which makes the body of constitutional knowledge needed to render decisions not all that different than that needed in the UK.


Most people understand "a constitution" to mean something written down that you can point to, that has the force of <something> behind it, that cannot be trivially elided by a government.

None of these are true of the UK "constitution", whether it is one document or 5000 precedents.

Any document written in a spoken human language will be open to interpretation - there's no getting away from that, regardless of the language, culture or country the document comes from. I still consider that a step up from the bullshit assemblage of "constitutional law" that claimed to be "the UK constitution".


> The UK has a constitution.

Yes, it's the parliament. There are practically no limits on The Parliament and they can pretty much issue any law they want.


> In the Netherlands, courts can’t test laws passed by the Dutch parliament to the Dutch constitution.

What does that mean in practice? That the constitution always overrides any law passed by parliament?


It sounds like it means the exact opposite, i.e. that in the Netherlands, there is no judicial mechanism for overturning unconstitutional legislation.


It's the other way around, actually… sort of.

It means that a Dutch court can't test the constitutionality of laws made by the Dutch government in concert with parliament. In legal parlance translated from Dutch, these would be called "laws in the formal sense."

The way it works is that the Dutch government (i.e., the Dutch ministers and the King, albeit the latter only in a ceremonious role) proposes a bill, and the two Dutch legislative houses (House of Representatives and Senate) vote to pass it.

A law that is a product of this process is deemed a "formal law" or "law in the formal sense." Courts cannot test these against the Dutch constitution (i.e., look to see if they're constitutional).

Other forms of legislation can be tested against the constitution by courts.

These are called "material laws" or "laws in the material senses" because, materially, they function as a law in the sense that they prescribe something and are generally binding. Still, they haven't been established in a "formal" manner through the process I described above that involves the government and parliament.

Examples of such material laws are municipal ordinances and royal decrees issued by the Dutch government (akin to the American executive orders by the US president).

Some laws that have been materialized through the process described above are also considered material laws instead of formal laws, but that's more a matter of exception when they don't have a generally binding character for all citizens (e.g., a permission law for the marriage of a specific member of the royal family).

A judge can't look at these formal laws and rule that they're unconstitutional.

Ironically, the Dutch constitution itself (art. 120) prohibits this test.

The logic at the time was that they wanted to prevent the judicial branch from second-guessing the legislative branch and that if it misbehaved, the voters could punish them during the next election round.

Additionally, they wanted to enshrine that the government, in concert with the two legislative houses, should be the unimpeachable sole authority to create laws.

However, this means that the Dutch constitution functions more as a set of guidelines for the highest level of legislators than a strict set of rules to abide by.

That said, nowadays, there is some political will here and there every couple of legislative sessions to reform it so that the courts are allowed to test against the constitution, with some ideas even going as far as establishing a formal constitutional court for this purpose.

As someone who used to practice there, I think it's more a matter of trivia that raises eyebrows in your first year of law school than something with many practical consequences.

As stated before, international and EU treaties have taken over the Dutch constitution's role in keeping the legislator in check. So far, legislators haven't sought to cross the lines in remarkable ways.

Nevertheless, I'd welcome testing constitutionality as an extra layer in the legal firewall, provided it's designed in a way that leads to results seen in the German, French, and Scandinavian models, as opposed to the results and effects caused by the SCOTUS in the US.


> It's worth noting that UK courts can't overturn Acts of Parliament

Eh. I think that grossly understates https://en.wikipedia.org/wiki/R_(Factortame_Ltd)_v_Secretary... ; while it does not remove the law from the books, incompatibility with ECJ rulings does effectively disapply the law.

This is why there's such a fight over the Rwanda bill: https://www.bbc.co.uk/news/uk-politics-68283703 . ECHR is effectively constitutional law in the UK, not an ordinary Act of Parliament. Courts have ruled that deporting people to dangerous countries breaches ECHR. The government is trying to legislate the ""fact"" that Rwanda is ""safe"" in order to circumvent that, because they're not quite yet ready to throw out ECHR entirely and haven't had decades to pack the courts.


Well, yes, there's some nuance here. Where there's an Act of Parliament that says courts can dis-apply other Acts of Parliament then the courts can do so.

But the Human Rights Act does not do this, even though it has quasi-constitutional status, and as far as I know now that the European Communities Act has been repealed no Act of Parliament does this.

A better case to cite than Factortame would be R (Jackson) v Attorney General, where the House of Lords (in its judicial function before that was removed to the Supreme Court) entertained the idea that in extremis parliamentary sovereignty was not absolute.

If the government continues its showdown over Rwanda the Supreme Court might be forced to re-visit that idea.

But the law as it is applied right now means that courts cannot overturn actsof Parliament.


> It's worth noting that UK courts can't overturn Acts of Parliament.

Is that true? I thought the UK had semi-recently (2009) introduced a Supreme Court for this purpose.

https://www.unz.com/jderbyshire/lessons-from-britains-nation... says this, just a couple of months ago:

> Just this week, on Wednesday, Britain’s Supreme Court struck down the latest attempt to implement the Rwanda plan. (Having a “Supreme Court” that strikes down Acts of Parliament is a fairly recent development in Britain.)


We have a Supreme Court. It's the old House of Lords judicial committee with new robes, though: the powers are nearly identical and the legal business of the HoL has been done by the most senior judges since the 19th Century.

The nuance here is that many Acts do not set out a whole scheme: they allow government to make subordinate regulations with the force of law. The Acts are (essentially, kinda) immune from judicial review, but the implementing statutory instruments aren't. (They haven't had full parliamentary scrutiny and are in practice just executive instruments - so can be struck down without parliamentary sovereignty problems as ultra vires the government).


> The Court held that a legal obligation to decrypt E2E communications is a disproportionate interference with the right to privacy.

*when no adequate safeguards against abuse are in place

Unfortunately it is not as straightforward as that it's incompatible altogether. Per this ruling, it's only incompatible when there are no good safeguards (they use the word "adequate" in one place and "suitable" in another, neither is very specific about what it means)


Yes, that is very true. The Court generally does not oppose surveillance measures in general, as long as adequate safeguards are in place. However, I read the relevant paragraphs (paras 76-79) to be quite a strong rejection of any statutory obligation that would effectively require the installation of a backdoor undermining E2EE. The criticism of a lack of adequate safeguards and the risk of abuse is more focused on other aspects of the law.

That also becomes clear in the key paragraph 80: "The Court concludes from the foregoing that the contested legislation providing for the retention of all Internet communications of all users, the security services’ direct access to the data stored _without adequate safeguards against abuse_ and the _requirement to decrypt encrypted communications_, as applied to end-to-end encrypted communications, cannot be regarded as necessary in a democratic society"

The Court does not qualify the requirement to decrypt E2EE communications with the same safeguards requirements. That of course does not exclude the possibility of the Court finding that a more narrowly-construed law is not in violation. But the Court clearly signals its skepticism towards any "requirement that providers of such services weaken the encryption mechanism for all users" (para 79).


Yes, this was a problem all along with arguments against surveillance (/encryption weakening) based on "it can be abused by bad actors" - it implies that one would be ok with surveillance if it could not be abused by bad actors. While it's tempting to use such arguments (it looks like they had effect in this case at least) it remains necessary to emphasize the true reasons one takes a stand against surveillance e.g. authoritarian overreach or a fundamental right to privacy.


Do you think that phone taps and mail-opening warrants, issued by judges, based on evidence submitted to the court that such warrants are appropriately targetted and based on existing evidence and reasonable suspicion, are intrinsically "authoritarian overreach"?


Not inherently, but they become overreach when they start claiming that they should be able to apply to E2EE protocols.

If you want the data from an E2EE protocol, serve an appropriately targeted and scoped warrant to one of the endpoints. This also provides an opportunity for legal challenge (e.g. for scope overreach).


From paragraph 64:

> For a detailed description of safeguards that should be set out in law for it to meet the “quality of law” requirements and to ensure that secret surveillance measures are applied only when “necessary in a democratic society”, see Roman Zakharov, §§ 231-34, and Big Brother Watch and Others, §§ 335-39

I am not a lawyer and not motivated enough to go read those decisions, but if anyone is curious that is probably the place to start to figure out what might count as "adequate safeguards".


> the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling.

The UK wants to leave the ECHR[0], so they might be able to get around it — unfortunately.

[0]: https://www.chathamhouse.org/2023/03/uk-must-not-sleepwalk-l...


The UK DOES NOT WANT TO LEAVE THE ECHR.

Select people in the government want to, not the whole of UK.


To tack onto this I don't think most people in the UK understand what the ECHR does and why leaving the EU didn't alter our obligations under the ECHR.

The media carries a lot of responsibility for that but not all of it - nearly every person in the UK carries a little box with access to a huge chunk of the sum total of all human knowledge, they just choose to not to use it.

If that sounds elitist or arrogant it's because I've about reached my limit with ignorant people refusing to understand the world is messy and complex.


It doesn't sound elitist or arrogant - quite the opposite. It just assumes that people know what's true and what's not up front, and know when the media is telling them the truth. Their little box doesn't only tell them true things.


Good clarification.

Personally I just hope we can remove those “select people” from office before they can actually carry out their plan.


You can’t remove the administrative state. It’ll be happy to sustain the illusion of “democracy” for you by throwing a few of its representatives under the bus every now and again, but in the end all of the candidates you get to vote for are 100% acceptable to the administrative state and are anointed by it.


The coverage I heard on the BBC and NPR in the States about Brexit and UK public sentiment was a complete inversion of reality. I'm reluctant to believe anyone telling me what the UK wants.


Nobody really knows what public sentiment is in the UK, because nobody is asking. They're all just telling the people what they 'want'.

The sample sizes for any polls are tiny, and the areas/people that are sampled are not comprehensive.

It's fairly likely that the people (or a majority of) want the Tories out, as all sides are suggesting that and it's about the only consensus we see.

Brexit was such a mess of misinformation and rushed voting, on something that the majority of people had no idea 'what' they were really voting for, that it should never have been taken as binding - and it probably wouldn't have been if the remain vote won.

At this point, it's unclear if the UK will start to even recover in the next 5 years, or just keep getting worse.


I think it is more correct to use 'UK' (or any other country) just for government and its institutions than for the body of its citizens.


I think the post you're replying to is rightfully observing that that semantic ambiguity creates harm, by equating the position of a country's government to the position of a country's people. Being more specific and saying "a faction within the UK government wants to..." seems like a better framing for any discussion.


A minor quibble. The UK is a 'state', not a 'country'.

It comprises of countries: Scotland, England, Wales, and a small chunk of Ireland.


As recognized by the rest of the world, the United Kingdom actually is a country.

Internally may be different, but technically it is a country.

A political union of four member countries — but still recognized as a country.


International football being one exception to this.


The UK leaving the ECHR, at this point, seems incredibly far-fetched; even amongst the Tories it's hardly a consensus position, and they realistically only have a few month of working time left before the next election.


>> information necessary to decrypt electronic messages if they were encrypted

That reminds me of Lavabit, which I once used as my primary email. In response to demands for decryption information, Lavabit handed over their private keys. On paper. Typed out. Possibly with a typo somewhere on page 6, or 12.

https://thenextweb.com/news/you-wont-believe-what-email-prov...


Perhaps a dumb question, but why would the EU courts be able to overturn laws in the UK now that the UK is not part of the EU anymore?


ECHR is not an EU court, but a separate entity, having for long had many non-EU member states.


ECtHR is not an EU court. UK is part of Council of Europe, which also includes Russia. Being member of Council of Europe entails mandatory treaty law of ECHR.


The UK government almost seem to be deliberately passing multiple pieces of legislation that they know will be overturned due to ECHR, because they believe such rulings would strengthen their argument for withdrawing from the convention.


I am a bit confused. The article seems fairly political, quoting some promotional text by the pirate party and not describing what case was brought in front of a judge and what the ruling bans specifically, so I clicked through to the actual court case linked at the bottom.

It has nothing to do with the pirate party or chatcontrol or any such thing. The court case was one person against the Russian government for fining Telegram when they didn't hand over plain text chat messages, if I'm skimming the initial facts section correctly. The whole article doesn't even contain the word russia. What is the article reporting on and why does it portray it as being related to the recent chatcontrol legislation?!

Edit: found the decision

> 80. The Court concludes from the foregoing that the contested legislation providing for the retention of all Internet communications of all users, the security services’ direct access to the data stored without adequate safeguards against abuse and the requirement to decrypt encrypted communications, as applied to end-to-end encrypted communications, cannot be regarded as necessary in a democratic society.

> 81. There has accordingly been a violation of Article 8 [privacy] of the Convention [of human rights]

Sounds like you can indeed extend that to any other encryption-circumventing law, like chatcontrol, but without considering the specific circumstances that were present in this Russian law, I'm not sure that it will be accurate. Note, for example, the wording in paragraph 80 "without adequate safeguards against abuse". Maybe chatcontrol had those, if that had been brought in front of the same judges


Its a judgement that will provide precedence. A Pirate Party member of the European Parliament comments because its a core issue to the party. Why would there be anything about the Pirate Party in the ruling?


Why would you include "We Pirates will now fight even harder for our digital privacy of correspondence!" (and then continuing to link their website as a source of truth on the matter) in a non-promotional piece? This is an advertisement, not a news article

One which I agree with, to be clear. I'm not opposed to the pirate party's views on digital matters. This party's goals/narrative just has no place in a piece about a court case


There’s a disclaimer at the bottom of the article that says they publish articles from a variety of sources, and that the viewpoints expressed aren’t necessarily their own, etc. Considering that it does seem to have an angle, the byline says it’s from their own unnamed correspondent, it’s not called an opinion piece, and there’s no link to the original, I’m guessing their slightly unpredictable correspondent’s surname is GPT.


I'm not arguing that with you. You misunderstood what was going on here, edited your comments many times, and now you want to discuss the article linked instead of the actual news (the judgement). Calm down.


I edited in more info as I found it, trying to be helpful for what's currently the top comment. Sorry if that's not okay


C'mon, let's let people write pationately about issues they hold in their hearts.

I can totally understand why they're so passionate about this topic in particular. We don't have much left of democracy in the world. If electronic privacy is destroyed like some EU leaders want, there will be close to nothing left.


I thought precedents only matter in the US "common law" framework, but most of the EU is following the "civil law" framework where precedents do not matter. Does this precedent really matter?


Precedence is still a thing. Just less mechanically than in the US.

This might be interesting: https://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?article=101...


It's funny seeing "common law" referred as a US thing when it's literally been in use in the UK for centuries before the US was a thing, and that's where the US inherited it from.

And precedent has it's place in civil law countries too, mostly around clarifying existing legislation in case of ambiguity, but it isn't an automatic ironclad thing.


An interesting quirk of English law is that murder is a common law offence. There is no Act of Parliament proscribing it; it's just something that everybody has always accepted is a crime.


While precedence is not the same thing in civil law as in common law, this is essentially a ruling by the highest European court on the interpretation of a law and its conflict with human rights. These rulings are typically on the matter of principle, so it does effectively "bind" lower courts and because of this the court is very unlikely to take on another case on the same "conflict" (at least before the law has been changed).


It’s a Council of Europe institution (note, not EU), so really there’s no common legal philosophy, just the relevant treaties and conventions.

The European Court of Human Rights’ whole raison d’être is the European Convention on Human Rights, so it interprets laws through the lens of whether they conform to that, and does have its own case law, albeit a short history of it.


The article is not the original. The original text can be found here: https://www.patrick-breyer.de/en/european-court-of-human-rig...


It's nice to know this also applies to the UK even after Brexit (still a member of the ECHR).


The Tories have been talking about leaving the ECHR for years now.


They should've left, obviously, not sure what they've been doing with an 80 seat majority. But a silver lining is Cameron/May's "Snoopers' Charter" is utterly dead now.


Azerbaijan is in the ECHR too; doesn't stop them from imprisoning political dissidents, employing slave labor, committing war crimes, attacking other ECHR members, or performing ethnic cleansing.


Well yes, generally the ECHR has no powers to compel compliance.

But ECHR rulings are binding to EU members (and the the various organs of the EU including the ECJ have way to enforce them).

ECHR are also still binding in the UK because legislation that says otherwise hasn't been passed yet.


[flagged]


I'm not sure why this is being downvoted.

Governments aren't accountable to their citizens, and there aren't any repercussions nor punishment for violating rights. Sure, the court might have ruled on this, but that's irrelevant when the government decides "national security" takes precedent and uses the media to manufacture the consent of the population into thinking extraordinary times require extraordinary measures.

If most of the people with guns want to ignore the court, they will.


I expect it's being downvoted because it's patronizing and lacking in any useful information beyond an implied disagreement.


It's being downvoted because it's like saying "lol" or "L". Nothing substantive was added to the conversation.


Man, Europe is really setting an example lately for how it's possible to roll out sensible technology regulations.


This decision was needed because the EU was about to ban end-to-end encryption. It’s not the EU commission, but a judge that ruled. AFAIK Commission can still ignore this.


You have it the other way around. Majority of EU member countries wanted to to ban E2E, but the EU institutions prevented that.


No, the ECHR is not a EU institution, it's just European.

The bad guys here are the commission and some EU member states.


Here's the actual position accord to the commission:

https://www.europarl.europa.eu/doceo/document/E-9-2023-00166...


As it is Ylva Johansson, the hater of freedom of speech and the champion of scanning software companies, speaking in this document, here is her background:

https://balkaninsight.com/2023/09/25/who-benefits-inside-the...


They in fact cannot.


Ursula on suicide watch.


As far as I remember, the commission tried to introduce the chat control nonsense but the parliament shut it down.


Now if they could only do a good job developing the technology itself…


If only California could do a good job starting as many companies as Delaware.


Is Delaware a good place for a startup? Or am I missing the joke.


Many companies incorporate in Delaware for benefits such as loose tax laws.


Why do what everyone can do if you can do the thing only you can do?

ASML

When there's a gold rush, make shovels.


That’s it? One noteworthy company for a population of 440M?


Obviously not. There are tons of large companies, many of which are often misread as American, because they are listed on the Nasdaq or another US exchange.

Many EU companies have far higher revenues than their US counterparts (Airbus, Volkswagen, Alstom), are boring but crucial (Heidelberg, DTE) or not easily recognised (Novo Nordisk, Unilever).

Even in tech, there's a lot of interesting ones: Booking.com, elastic search, takeaway (aka GrubHub), Adyen, for example are all Dutch. There's or was, Spotify, Skype, SoundCloud, Zalando, Mojang, Shazam and so on.

Just be a bit more curious and less preoccupied and you'll see there's plenty going on in Europe. And don't forget that companies can be great and big and multinationals even if they aren't present in the US.


The EU's entire modern tech industry does not even measure up to that of one US company.

Dismissals of the EU's inability to compete in tech is why EU citizens have missed out on literally tens of trillions of dollars in economic growth post-2000s.

The EU's lack of ability to innovate is becoming a serious problem for the progress of our species as a whole.


> literally tens of trillions of dollars

> ability to innovate

Valuation and innovation could be related and could be not depending on the company, industry, fraud, etc.

> The EU's lack of ability to innovate

Modern American tech products are made of so many different parts, of which a significant portion is made (and designed) in EU, rest in US, Japan, Korea, China, etc.


US valuations are simply insane. Oligarchs money looking for an investment vessel inflate share prices. In most cases it has nothing to do with actual value of the companies or their revenue.

In US empty company can be "worth" billions for a time.


That's what happens when you're a wealthy country with a booming economy and flush with companies that serve the world.


No.

That's what happens when there's no social system for pensions. In the US everyone and his dog has to "invest" in the stock market for their older days. In Europe this is happening more and more too, but there's also still a reasonable pension system in most countries that serves this purpose for individuals.

There are simply far more investers putting money in already inflated assets in the US than in Europe.

Take Tesla vs Volkswagen (or Porsche if you want). VW sells magnitudes more cars worldwide than TSL, even just the electric ones. Their ROI is much higher. And both their innovation is just as flakey at times (compared to e.g. Volvo who remain strong leader in all automotive innovation).

Anyone who looks at the solid figures, sees that VW is simply the stronger and more boring company. Yet people bet on the future, in which TSL promises to overtake VW. And then inflates the already inflated bubble some more, praying for that promise to be delivered on.

Praying, however, is not a good way to innovate an economy.


You do realize that pensions invest in the market too? 401ks just give you more control over the investment.


Yes, I do.

But pension funds invest very different from Jane and Joe for their retirement.

To answer equally condescending: I presume you realize that?


Take the biggest pension fund in Europe, Norway Government Pension Fund Global with $1.5T AUM: https://www.nbim.no/en/the-fund/investments

Over 70% is invested in equities, the rest mostly in fixed income (bonds). Not a whole lot different than an average 401k invested in a target date fund.

But the real zinger: over 33% of the total is invested in US equities alone, with a whopping 47% of all investments being in the US. 11.2% of total investments are in the US technology sector vs a mere 1.6% in European (including non-EU countries like Russia) technology. Truly humbling.

Norway doesn't seem to share your opinion on US equities.


All investment involves some gambling. Putting 1/3 into US stocks is not a bet on health and creativity of US conpanies. It's a bet on the assumption that the biggest casino on Earth will keep attracting the rich that don't have other places to go. Fairly safe bet I'd say.

Regardless, it only reinforces that the notion that US stock market doesn't reflect true worth of US companies because it's flooded with capital from pension funds. Not only US ones but from the whole world.


> Putting 1/3 into US stocks is not a bet on health and creativity of US conpanies.

This type of delusion is why Europe has been falling behind economically for decades.


I, in my delusion have near zero influence on European economy, so if it's in fact falling behind, which it probably isn't, there must be other reason.


Not really. That happens when you have concetration of capital in few hands that can do with it whatever they want but there's really not much to do with it.

US stock market is analogue of Chinese real estate market. It's full of overpriced crumbling units and overt scams waiting to be exposed.

In Europe this capital is dispersed and more often serves the purpose of building infrastructure, increasing prosperity and well being of societies as a whole and developing large number of smaller businesses priced realistically. It's less flashy, but healthier.


The European economy is not healthy at all, and is facing an upcoming demographic crisis with a lot of issues with high unemployment and low wages causing brain drain.

I mean FFS the damn Euro literally almost became worthless because of the Greek debt crisis. Did people forget how close Europe came to abandoning its own currency?


Can you recommend some reading on the subject? I don't recall any ideas about abandoning Euro by anyone else but the Greeks, who probably just wanted to print more which would be devastating for them in anything but the short term.


Yeah. Airbus has proven to be unable to compete and innovate itself into an established market. /S


What has Boeing proven then?


My point was that Airbus has proven to be able to break into an established, near monopolized market through innovation.


Oh, sorry. I missed the intention behind the /S

I didn't know that about Airbus.


If we're talking chips, ARM is also quite noteworthy...

FinTech is pretty awesome in Europe too: Wise, Revolut, Klarna, Adyen are all unicorns/decacorns.


There are tons of large european tech companies. But we forget that because most of them are 50 or 100 years old.


they already do


Do they? Examples?


Spotify, King, DICE and Mojang are some commercial software successes. All from Sweden.

If you don't think the entertainment industry counts for much, I might remind you Linux was originally made in Finland. (Linus Torvalds is half Swede half Finn iirc)

That's just from the top of my head.


Spotify was made up of 75% US employees since the moment it validated its value.

DICE is a failed studio. Battlefield 2042 was one of the worst AAA video game launches of all time (with Cyberpunk 2077 by Polish studio CD Projekt Red being another) after a rocky Battlefield V launch and there is no reason to believe they will come back from it.

King makes low quality micro-transaction-riddled games for addicts.

Mojang -- OK.


Facebook is just scams and intervenes with elections. Google is just privacy hell that sells your data for ads. Amazon is in the business of abusing its workers. Point being, it was asked for success. Not if people like the company or not.


If we're going to be reducing to absurdity, Europe is a museum. No one is looking to it for the next big thing.


What an intellectually dishonest take comparing Candy Crush to US big tech. You should be embarrassed.


I wonder what's done more good for the world.


I mean, candy crush is the most downloaded mobile game ever, and it's income is measured in millions of dollars per DAY.

I don't much like it either, but it's popularity is difficult to deny.

By any objective measure, it's a successful company.


What a cynical interpretation. These companies have QoL for billions, directly and indirectly. You are just normalized to it now.

For some reason I don't see you blaming Cambridge Analytica - the actual company running the interference by exploiting APIs - for the interference itself.


Did the point go above your head? Because my point was that the EU companies mentioned also have earned money and been used by billions of people, no matter if the other commenter likes them or not.


Honestly, after so many things turning into "they'll just come back and try again in two years", it's a little reassuring to see some longer term roadblocks being put in place against these anti-E2EE proposals.


yeah, preferably through the Agricultural and Fisheries Commission or a similar body


Europe has done something that I actually love.

I was worried the "let's think of the children" narrative would take over.

The value of encryption has a future in Europe at least.


Despite the name, it's not the eu :D


I was assuming it had jurisdiction over the EU?

What is the actual real world impact of this?


It's a part of the Council of Europe, which includes all European countries besides Russia and Belarus (who got kicked out last year). It has no real enforcement powers for its judgements, though most countries do adopt most its judgements, and it has pushed human rights in Europe forward a lot.

While the EU could potentially just ignore the statement, there's a good chance they won't, especially as the European Parliament already tends to be against weakening encryption.


EU can't ignore it - while the ECHR is separate from the EU, the EU itself is legally bound to follow the ECHR rulings.


>the EU itself is legally bound to follow the ECHR rulings

You'd think so, but it actually isn't. All of the EU's member states are, but the EU and its institutions aren't.

The EU is legally bound to join the Council of Europe (and thus come under the jurisdiction of the ECHR), except the EU's Court of Justice threw a spanner in the works quite a while ago and this is on hold, pretty much indefinitely.

The conflict is that the CJEU is supposed to be the authoritative interpreter of EU law, but if the EU joins the CoE then the ECHR could also rule on matters of EU law, potentially binding the CJEU, and it doesn't like that very much.


> this is on hold, pretty much indefinitely

It's not, negotiations started again in 2020.

https://www.coe.int/en/web/human-rights-intergovernmental-co...}


oh! I had totally missed that, thanks


ECtHR rulings have been ignored in the past by members. Italy for example currently has over 2000 verdicts unimplemented. The ECtHR orders a country to implement changes to improve the situation, but does not set a deadline, so members could just ignore it.


The EU requires EU members to be subject to the ECHR, but it is a separate body and various non-EU countries are subject to it (though, particularly outside the EU, compliance varies).


The European Court of Human Rights enforces the European Convention on Human Rights.

Its jurisdiction is recognised by the 46 member states of Council of Europe (which includes all of the 27 EU members) + Kosovo.


There's a degree of push/pull on government and industry as far as encryption is concerned. Government shouldn't be injecting vulnerabilities into algos but they also need a way to read messages from criminals and terrorists. Industry wants some way for customers to feel safe using their product to message or whatever their (legal) use case.

Without some local pressure, this cedes encryption commercialization to the US. Sure academics will still love their novel algos but until someone can make money from them, they'll sit in papers, ready for the enterprising american dev to turn into the next big encrypted chat app that is more secure than Signal or something like that.


Nice. I can imagine certain ISPs (that I will not shame by name) won't be very happy right now. This really throws a wrench in some proxy models.

Good riddance.


Please do name and shame. This would benefit everyone.


The article is semi-garbage (politics aside it is a badly written/biased article).

Better read the decision.

https://hudoc.echr.coe.int/eng/#{%22itemid%22:[%22001-230854...}

CASE OF PODCHASOV v. RUSSIA

(Application no. 33696/19)


In defence of the article - it linked the decision. That means it is automatically in something close to the top 20% of articles about political topics.

And the actual decision is quite readable; on a quick skim it seemed to agree with what the article said.


Relevant English text from the Court's press release:

> The applicant, Anton Valeryevich Podchasov, is a Russian national who was born in 1981 and lives in Barnaul (Russia).

> Mr Podchasov was a user of Telegram, a messaging application which was listed as an “Internet communications organiser” (организатор распространения информации в сети Интернет) by the Russian State. It was therefore obliged by law to store all communications data for a duration of one year and the contents of all communications for a duration of six months and to submit those data to law-enforcement authorities or security services in circumstances specified by law, together with information necessary to decrypt electronic messages if they were encrypted.

> Relying on Article 8 (right to respect for correspondence) and Article 13 (right to an effective remedy) of the Convention, Mr Podchasov complains of the legal requirements to store, pass on and decrypt data, and that he did not have an effective remedy for this complaint.

> Violation of Article 8

> Just satisfaction: The finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant

Source: (this is broken) https://hudoc.echr.coe.int/eng-press/#{%22fulltext%22:[%2233...}

Edit: Yuck, this website makes it impossible to permalink anything. What a horrible idea for an organization that's supposed to make very important decisions that people need to reference.


Click on "details" and you can permalink


HN markup seems to be breaking the link, here's an alternative one: https://hudoc.echr.coe.int/eng/?i=001-230854


  FOR THESE REASONS, THE COURT
  
  Holds, unanimously, that it has jurisdiction to deal with the applicant’s complaints in so far as they relate to facts that took place before 16 September 2022;
  Declares, unanimously, the complaint concerning the alleged violation of the right to respect for private life and correspondence admissible;
  Holds, unanimously, that there has been a violation of Article 8 of the Convention;
  Holds, by five votes to two, that there is no need to examine the complaint under Article 13 of the Convention;
  Holds, by six votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
  Dismisses, by six votes to one, the applicant’s claim for just satisfaction.
  
  Done in English, and notified in writing on 13 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


Relevant paras:

> (γ) Statutory requirement to decrypt communications

> 76. Lastly, as regards the requirement to submit to the security services information necessary to decrypt electronic communications if they are encrypted, the Court observes that international bodies have argued that encryption provides strong technical safeguards against unlawful access to the content of communications and has therefore been widely used as a means of protecting the right to respect for private life and for the privacy of correspondence online. In the digital age, technical solutions for securing and protecting the privacy of electronic communications, including measures for encryption, contribute to ensuring the enjoyment of other fundamental rights, such as freedom of expression (see paragraphs 28 and 34 above). Encryption, moreover, appears to help citizens and businesses to defend themselves against abuses of information technologies, such as hacking, identity and personal data theft, fraud and the improper disclosure of confidential information. This should be given due consideration when assessing measures which may weaken encryption.

> 77. As noted above (see paragraph 57 above), it appears that in order to enable decryption of communications protected by end-to-end encryption, such as communications through Telegram’s “secret chats”, it would be necessary to weaken encryption for all users. These measures allegedly cannot be limited to specific individuals and would affect everyone indiscriminately, including individuals who pose no threat to a legitimate government interest. Weakening encryption by creating backdoors would apparently make it technically possible to perform routine, general and indiscriminate surveillance of personal electronic communications. Backdoors may also be exploited by criminal networks and would seriously compromise the security of all users’ electronic communications. The Court takes note of the dangers of restricting encryption described by many experts in the field (see, in particular, paragraphs 28 and 34 above).

> 78. The Court accepts that encryption can also be used by criminals, which may complicate criminal investigations (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 312, 26 September 2023). However, it takes note in this connection of the calls for alternative “solutions to decryption without weakening the protective mechanisms, both in legislation and through continuous technical evolution” (see, on the possibilities of alternative methods of investigation, the Joint Statement by Europol and the European Union Agency for Cybersecurity, cited in paragraph 33 above, and paragraph 24 of the Report on the right to privacy in the digital age by the Office of the United Nations High Commissioner for Human Rights, cited in paragraph 28 above; see also the explanation by third-party interveners in paragraph 47 above).

> 79. The Court concludes that in the present case the ICO’s statutory obligation to decrypt end-to-end encrypted communications risks amounting to a requirement that providers of such services weaken the encryption mechanism for all users; it is accordingly not proportionate to the legitimate aims pursued.

> (δ) Conclusion

> 80. The Court concludes from the foregoing that the contested legislation providing for the retention of all Internet communications of all users, the security services’ direct access to the data stored without adequate safeguards against abuse and the requirement to decrypt encrypted communications, as applied to end-to-end encrypted communications, cannot be regarded as necessary in a democratic society. In so far as this legislation permits the public authorities to have access, on a generalised basis and without sufficient safeguards, to the content of electronic communications, it impairs the very essence of the right to respect for private life under Article 8 of the Convention. The respondent State has therefore overstepped any acceptable margin of appreciation in this regard.

> 81. There has accordingly been a violation of Article 8 of the Convention.


Excellent news.

The European Court of Human Rights ... the court our idiotic UK gvoernment are trying to paint with the same brush they painted the EU.


I realise the article contains the same typo, but the title is bugging me – it needs a space between "end" and "encryption". "Endencryption" is not a word.

@dang ?


Ah, apologies about that, I didn't even notice it. Happy to see it corrected.


Yeah, it's bugging me as well. haha.


They also ruled a while ago on site blocking, which has at least been tested in the Mexican supreme court[0]

translated via google "As the United Nations Human Rights Council has stated, blocking an Internet page implies any measure taken to prevent certain online content from reaching an end user. In this regard, it must be taken into account that restrictions on the human right of freedom of expression should not be excessively broad, on the contrary, they should refer to specific content; Hence, generic prohibitions on the operation of certain websites and web systems, such as blocking, are incompatible with the human right of freedom of expression, except in truly exceptional situations, which could arise when the contents of an Internet page are translate into prohibited expressions, that is, classified as crimes in accordance with international criminal law, among which the following stand out: (I) incitement to terrorism; (II) the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence - dissemination of "hate speech" on the Internet; (III) direct and public incitement to commit genocide; and (IV) child pornography. Likewise, the exceptional situation regarding the prohibition of generic restrictions on the right of expression could also be generated when the entire contents of a web page are illegal, which logically could lead to its blocking, as it is limited only to hosting expressions that are not permissible by law. the legal framework."

[0] https://vlex.com.mx/vid/tesis-aisladas-683012725


Weakening of secure end-to-end encryption means the encryption is worthless.


this is a HUGE win and could very much help set precedent across the globe (looking at our congress specifically, USA). Still more hurdles to jump over but a great step in the right direction


Good news


What the hell is wrong with our democratic values to begin with? Why do we need high court decisions for these insane ideas of making a better world. Are these people infected by some corporate lobby or what is it why they cannot think in favour of human kind. I cannot phantom this.


Reminder that the European Court of Human Rights, although very powerful and influential, does not have the authority to force anyone to abide by their rulings.

Also, here's a better article: https://fortune.com/2024/02/13/end-to-end-encryption-russia-...


Slightly misleading: The Court's judgments are legally binding upon the State members of the Council of Europe. However, it is true that there is no armed enforcement mechanism – something that most domestic courts lack too – and instead decisions are enforced and monitored by the Council of Ministers (the equivalent of the UN General Assembly). However, most of its decisions are complied with most of the time by most nations (safe for Russia and Turkey), frequently because domestic courts will abide by the Court's rulings to overturn laws through its own decisions.


Also, despite its name and despite its location in Strasbourg, European Court of Human Rights is not an EU institution.

https://en.wikipedia.org/wiki/European_Court_of_Human_Rights...


For example, Azerbaijan (a brutal and militarily aggressive dictatorship) is a member


Not so. The UK, for instance, appears to treat these rulings as binding. This is why the UK conservatives want to scrap the Human Rights Act and replace it with a supposedly identical Bill of Rights, the key difference being a presumption that the UK's supreme court would cease to defer to the convention court.

A couple of examples relating to this that come to mind:

* Deporting refugees to Rwanda was stopped by an injunction from the ECHR * Depriving prisoners of votes was ruled illegal in 2005 or so

There are a few others but these two come to mind.

My understanding is that although the treaties (plural?) of the CoE and ECHR don't assume judgements are binding, a number of countries made them binding in their legal systems via domestic legal instruments.


I believe both your examples are ones where the UK did not follow the decision of the ECHR.


The Rwanda ECHR injunction was followed, which is one reason why no migrants have yet been sent to Rwanda despite nearly two years of harsh rhetoric.


Is there an exception for emergency purposes?


If it's done right, it can't be subverted in case of "emergency" can it?

If it's full of bugs, it simply doesn't matter.


The "e2e" concept that most are familiar with is basically fake: the provider is responsible for the client that does the encryption and decryption. Of course they can break it if forced. Software exploits are a separate matter and also easier to deal with when the end user isn't truly in control of the encryption (or easier if they don't know what they are doing.)


It's more fake because you download the app, look up your friend's number "1-555-333-2222", and your client trusts their server to actually return your friend instead of a MITM. Some asterisks there, but basically it's far from trustless.


Isn't this what the "safety number" in Signal is for? Obviously you are still trusting many other things there (the client software, OS, hardware, whatever out of band method you use to compare the numbers, etc.), but I thought the safety number pretty much addresses the MITM concern specifically, if you bother to check it.


Right, the issue is that nobody checks it and they don't really tell users upfront why they need to. It also notifies you if the number changes later, but seems like that can happen for benign reasons too, so it might go ignored. WhatsApp and Telegram are similar.

Someone could orient an E2EE app around these trusted identities, but it'd probably not be very popular.


If the client is properly developed and secured, they cannot break it without shipping an update to that client to change its behavior - which then affects everyone.


I'm quite sure they can use the app store to push a targeted update just to some.


Yes, an operating system that uses a compromised software supply chain is at risk of compromise, but that really has nothing to do with e2ee.


E2EE itself as a concept is ridiculous. The word was stolen from networking, end to end, and repurposed for an entirely different and non-sensical context to describe sth completely else. It has to do with "E2EE" because the biggest provided of it, Signal, pushes you to use 'compromised software supply chains' that are iOS and Play Store, evensofar as to spreading FUD about alternative distribution mechanisms, like APKs. That's why you have to go over yourself to find the APK of the App on Signal's website.


I am very suspicious of Signal, for not not being on f-droid, but being on play store.

I'm sure the protocol is fine and all, but playstore can easily be used to compromise everything anyway.

Also I've read many times Bruce Schneier claim that Signal is the most secure communication system that exists, and Whatsapp is the 2nd best, because it (allegedly, but we don't know) uses the same protocol.


Do you think F-Droid is more resilient to malicious influence than Google's Play Store?

I haven't looked deeply into how F-Droid is currently operating, so maybe I'm off here, but isn't it just all on a server run by some random guy in his free time? I love what F-Droid is doing, and I think it has a bright future, but in its current state I would never trust it on any of my devices that I use for anything important.

Also, yeah, it really is super easy to crack open the WhatApp APK and confirm that it is, in fact, using libsignal. That would be kind of a weird thing to lie about, since anyone could quickly call them out on it.


Using libsignal doesn't mean that there is no API to enable a side channel :)

I think that google and apple would just comply and do whatever they are told, while the f-droid guy needs to be hacked and might notice he got hacked, so in that sense it's safer.


Them not being on F-Droid is justifiable because F-Droid app IS less secure than alternatives. It does not use modern Android session installer, which is problematic in many different ways. Granted, there are third party F-Droid apps like Droidify that fix these issues.


How is it less secure than the play store?


No need, push an update to all that only affects certain users. But if anyone ever de-obfuscates that, your reputation is gone.


If you push only to some it's less likely to ever be detected.


> Is there an exception for emergency purposes?

The problem is when the "emergency" is "the citizen may be engaged in political activities that are against the interests of the ruling party."


Yes, in case of an emergency you can ask God to give you the prime factorization of 4096bit numbers.


I think that depends on what you mean: a general state of emergency or a specific situation where the police deem there to be an emergency (e.g. classic hidden bomb scenario)

Regarding (2), the Court found that a statutory obligation to decrypt E2E-encrypted data upon (judicial) request to be disproportionate, but it could still be imagined that – if more narrowly construed – a law could be considered to be proportionate. But the Court does seem quite unwilling to entertain the idea of backdoors for E2E encryption.

Regarding (1), the European Convention on Human Rights (ECHR) allows so-called derogations from certain rights in "time of war or other public emergency threatening the life of the nation" (Art 15 ECHR), insofar as they are necessary and the state of emergency has been properly declared. The right to privacy is such a right, so a State that faces an insurgency may declare a state of emergency and, as part of its emergency measures, could probably demand the decryption of E2E communications if it's necessary to fight the insurgency (e.g. it's a guerilla group using an E2E messenger) - but hard to judge in the abstract.


When there is an emergency to break into a house, the police needs to get a mandate from a judge.


No, they don't. Many countries have the concept of "imminent danger", which allows police to skip the warrants. It's called "Gefahr im Verzug" in Germany, for instance.


Depends on where you are. In the US there's the Exigent Circumstances exception to the warrant requirement. Not sure if the same theory has been included in EU countries but I would be surprised if it hadn't, a quick search didn't turn up much english language about it.

https://www.ce9.uscourts.gov/jury-instructions/node/155


Well, there is actually an exception to that too - the Police can break into any home, without a warrant, in the US, if they can prove they had reasonable cause to believe that there was imminent and immediate threat of bodily harm or death.

If you are a police officer and see a guy clearly pointing a gun at someone else through the window, yes, you can break in if the circumstances warrant that.


Or if you receive an anonymous call from a swatter..


The flip side of that is that if the police enter on that basis, any evidence they come across in the course of that action is going to be tainted and potentially thrown out of court, especially if that evidence wasn't in plain sight.


That's not true at least in Spain. There's "In flagrante delicto" which means if the police suspects something going on they can kick your door down.

It was used many times during the pandemic: when they suspected you were having too many people over at home, they acted. Unconstitutionally, mind you.

The EU is not the utopia many think it is.


You’d need to define “unconstitutionally” as it seems if they have the right then it is constitutional


The constitutional court of Spain ruled the state of alarm (a kind of state of emergency) that was used to prohibit gatherings during the pandemic was unconstitutional. But by then the damage was made of course.


The constitutional court of Spain is an ultra-rightwing joke. Imprisoning Catalan nationalist politicians for calling for independence brought that court into disrepute.

I'm not keen on written constitutions, or constitutional courts <cough US Supremes>.


Errr, that's not exactly what they did, as well as you know :-)

In any case I hope we can agree that it's good that they said that restricting our constitutional right to free movement was illegal, even if it had no consequences for those who violated our basic rights so blatantly.


If I'm wrong about the constitutional court sentencing Catalan nationalist politicians to prison, that's not something I know; feel free to correct me.

I don't know what that has to do with free movement, nor how that's related to the imprisoned politicians.

FWIW, I don't accept the notion of "human rights" - there are in reality only those privileges that are actually granted. I would like it if there were some kind of universally-accepted set of rights; but only if they are congruent with my own views about what "rights" should look like.


They did more than just "calling for independence". Use your search engine of choice to find out what they did.

And this was not a case of a violation of "human rights", in which I also do not believe. During the pandemic, there was a flagrant violation of our constitutional rights, among them, the right to free movement (which very roughly means, as a Spanish citizen, I can go anywhere in Spain, whenever I want) and free assembly. The constitutional court makes sure that the constitution has teeth, or so they should.


People think the EU is a utopia? I just think it is the best of a bad bunch


there’s only and opposing secret court mandating the opposite: publicly available encryption must be weakened on release


Exceptional circumstances can warrant exceptional measures, but also require exceptional justification, for example by means of a juridical decision for the individual case (i.e., a judge issuing a warrant allowing the police to install and use a backdoor on a concrete individual).


Let’s just remind that “exceptional justifications” in Canada were “Truckers are protesting with honks in the middle of cities”, so not exactly a matter of national security and in the USA, NSA took it to mean “Any US or non-US citizen on US or non-US soil” (for national security letters).


A "Court of Human Rights" that counts Azerbaijan as a member is not a court that should be taken seriously.


This article doesn’t actually contain any information that backs up the title, or if the title is true at all.

There’s a quote from some party member who doesn’t seem directly involved, and almost no information about the actual case / ruling.


> The judgement cites using vulnerabilities in the target’s software or sending an implant to targeted devices as examples [of legitimate ways to defeat E2E encryption].

That looks like a bad judgement, to me; exploiting vulnerabilities, or using implants, is generally some kind of criminal hacking. So the court seems to be saying that's not OK, unless you're a government. I.e., governments don't have to obey the law.

There are quite a few EU governments that would prefer not to have to comply with the law. Every EU government gets to plant a judge on the ECHR bench.


> Every EU government gets to plant a judge on the ECHR bench.

Every EU Council member?

Not sure why I was downvoted, because the downvoters didn't care to comment.




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