Prikupljanje podataka iz otvorenih izvora i obavještajne službe: pravo na privatnost
Information Gathering from Open Sources and National Intelligence Services: Right to Privacy

Summary/Abstract: Data collection is essentially the core activity of any intelligence service, and the collection of information from public sources is precisely the most useful, cost-effective, and productive intelligence-gathering discipline. Neither in itself nor as a method of security services is OSINT (Open Source Intelligence) regulated by Union law, nor has the Court of Justice of the European Union (CJEU), or more specifically the European Court of Human Rights (ECtHR), issued a ruling on it to date. In this sense, it should be regarded like any other activity of the services that potentially limits or threatens human rights, in particular the right to privacy. Regarding OSINT, security services will minimally, if at all, interfere with human rights and fundamental freedoms. The fact that an individual has made certain information public—either unknowingly or by imprudently publishing it without considering that it could become accessible to everyone, including intelligence services—is not verifiable. In this context, both at the level of the ECHR and at the level of the European Union, there is an exception for national services from strict requirements for the protection of privacy principles. If such an exception exists for much more invasive methods of data collection, a fortiori, it exists even more for the collection of data from open sources. Consequently, services are least restricted in applying this intelligence-gathering discipline. Of course, such an exception is not without limitations and conditions. Intelligence services, in their operations, are always bound by the principle of legality as well as the constitutional and Convention-based principle of proportionality. Accordingly, they will not collect data, including from public sources, in the absence of an operational necessity. The increased availability of data from open sources, and consequently the enhanced intelligence-gathering capabilities of intelligence services in this context, should not result in additional restrictions on their operations. The reasons are minimal intrusion into the right to privacy and the existence of effective limitations on their actions arising from the principles of the ECHR and the legal system of the Union, as reflected in the case law of the ECtHR and the CJEU.

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