| Applicant name | PODCHASOV |
| Applicant type | natural person |
| Number of applicants | 1 |
| Country | Russia |
| Application no. | 33696/19 |
| Date | 13/02/2024 |
| Judges | Pere Pastor Vilanova, President, Jolien Schukking, Yonko Grozev, Georgios A. Serghides, Peeter Roosma, Ioannis Ktistakis, Oddný Mjöll Arnardóttir |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | quality of law |
| Type of privacy | Informational privacy; procedural privacy |
| Keywords | Mass surveillance; quality of law |
| Facts of the case | The applicant complained about the statutory requirement for ICOs to store the content of all Internet communications and related communications data, and to submit those data to law-enforcement authorities or security services at their request together with information necessary to decrypt electronic messages if they were encrypted. |
| Analysis | The Court notes at the outset that the present case concerns the statutory requirement for ICOs to store the content of all Internet communications and related communications data, give law-enforcement authorities or security services access to those data at their request, and decrypt electronic messages if they are encrypted. The storage, although carried out by private persons – the ICOs – is required by law. The interference complained of relates not only to the storage of the data described above but also to the potential for national authorities to access those data. Referring to the Roman Zakharov case, the Court finds that the mere existence of legislation permitting secret surveillance constitutes an interference with a user’s private life. 58. The Court concludes that the continuous storage of the applicant’s Internet communications and related communications data by Telegram, the authorities’ potential access to these data and Telegram’s obligation to decrypt them if they are encrypted, pursuant to the Information Act and its implementing regulations, amounted to an interference with the applicant’s Article 8 rights. The Court considers that in the present case the questions of lawfulness and of the existence of a legitimate aim cannot be dissociated from the question of whether the interference was “necessary in a democratic society”. It will therefore examine them together below. (α) Storage of Internet communications and communications data The Court is struck by the extremely broad duty of retention provided by the contested legislation and concludes that the interference is exceptionally wide-ranging and serious. (β) Potential access to the stored data for the purposes of targeted secret surveillance The Government have confirmed that access to retained Internet communications and related communications data is governed by the same legal regime which was examined in Roman Zakharov in the context of interceptions of mobile telephone communications. Moreover, the authorisation procedures were not capable of ensuring that secret surveillance measures were ordered only when “necessary in a democratic society”. (γ) Statutory requirement to decrypt communications 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. |
| Other Article violation? | Holds, by five votes to two, that there is no need to examine the complaint under Article 13 of the Convention; |
| Damage awarded | 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. |
| Documents | Judgment |