These conditions apply decisions on the organized collection of cross-border electronic communications according to chapter 7 of the law (regjeringen.no).

The trial was against the backdrop of two new rulings from the European Court of Human Rights (ECtHR) relating to digital mass surveillance, Big Brother Watch and More v. United Kingdom (echr.coe.int) and Centrum for Rättvisa v Sweden (echr.coe.int). The Norwegian Data Protection Authority’s response to the consultation is also based on the practice of the Courts of the European Union, including in the assessment La Quadrature du Net and More (curia.europa.eu), SpaceNet (curia.europa.eu) and Telekom Deutschland (curia.europa.eu).

Not in accordance with ECtHR practice

– The proposal is not in line with EMD’s requirements for independent control previously at all stages of collection, said Jan Henrik Mjønes Nielsen, senior legal adviser at the Norwegian Data Protection Authority.

The Norwegian Data Protection Authority believes that the proposal is inconsistent with Merck’s practices and involves collection and storage not subject to prior independent control. The proposal weakens the court’s control by allowing the National Intelligence Service to pre-check information. In addition, proposals are not clearly defined in terms of what can be collected, how long it can be kept, and how write-offs should be made if the court refuses to proceed with collection.

– Unclear bills contribute to creating uncertainty about the level of monitoring and can amplify the negative effects of organized collection, continued Mjønes Nielsen.

Potential cooling effect

In the Norwegian Data Protection Authority Privacy Survey from 2020, 16 percent answered that they failed to participate in online newspaper comments sections or in Facebook debates because they were unsure whether the authorities had access to the information they left behind. 13 percent answered that they failed to conduct an online search because of uncertainty over whether authorities had access to the information. Nearly one in ten, for the same reason, fail to seek help or seek information about issues related to mental health, abuse, addiction, or other sensitive issues.

– Trust in the Norwegian Intelligence Service’s processing of personal data is maintained by the fact that there are clear boundaries and good control mechanisms, says Mjønes Nielsen.

Been waiting for the practice of international law

In June 2020, a proposal for a new law on intelligence services was adopted in Storting. The government later announced that the chapter on facilitated collection in the law would not take effect on January 1, 2021 as planned, pending international case law. The changes that have now been proposed by the Ministry of Defense come against the backdrop of these developments.

Therefore, our consultation responses in this round apply to these proposed changes. We also issued a consultative opinion on the new law on intelligence services in 2019.

download

Consulting opinion of the Norwegian Data Protection Authority on adjustments to the Information Services Act, Chapter 7 (pdf).