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service providers’ data rooms (a special technicalconnection has been set up between the companiesand the national security authorities). And thesecurity men sitting on the two sides of the tableall knew each other from the past and understoodeach other. Hungary, which has never been able toget rid of its past of secret agents and spies, startedits own time travel back into that past.When Big Brother watches youIn his famous book 1984, George Orwell wrote that“Who controls the past controls the future.” Thisquote – even if it was related to the communist era –expresses the basic societal concern about any statesurveillance well. This recognition led many humanrights activists to fight against the Data RetentionDirective and its national implementation all overEurope. In Hungary, the Hungarian Civil LibertiesUnion (HCLU) protested against the implementationof the Directive in many ways – without significantresult, effect or echo. They submitted amendmentsto the national law through members of parliament,published articles, and organised civic actions inwhich citizens asked the service providers to informthem whether they were under surveillance or not,but all attempts remained unsuccessful.On the other hand, the conservative Hungariangovernment, which was first elected in 2010and for a second time in April 2014, became moreand more successful in controlling citizens. Theyknew well that those who control the past controlthe future. Hungary’s parliament moved to increasesurveillance of high-level public officials, with themodification of the National Security Law on 24May 2013. It was designed to allow the state toidentify any risks that could lead to someone influencingor blackmailing a person under surveillance,which would in turn cause state security issues, thelaw says. The range of positions in the secret service’sfocus is detailed: the people subject to suchsurveillance are ambassadors, state secretaries,heads of administrative bodies and councils, themanagement of parliament, the head of the militaryforces and army generals, police commanders andsuperintendents, and heads and board membersof state-owned companies. The person in questionneeds to sign an approval for the surveillance tobe allowed. Refusal to sign means they lose theirjobs. The modification has raised concerns on thepart of the ombudsman and civil rights groups, andsparked comments that the secret service’s reachinto people’s private lives would now be “total”. Thebill also lifts the earlier requirement of a court nodfor the secret gathering of information on peopleby opening their letters, making audio and videorecordings or searching and bugging their homes.Apart from allowing surveillance of a selectedgroup of people without letting them seek legalremedy, the law provides no regulations that limitwho can see the information, what can be done withit, or how long it can be stored. The law also allowsfor employees to be fired for conduct outside theworkplace, for as yet unspecified reasons. It meansthat Hungary now allows investigation of particularindividuals without any need to demonstrate a specificreason why every aspect of a person’s life mustbe reviewed. That is unusual in democratic states.The new national security law has really created anOrwellian landscape in Hungary.Hungary’s ombudsman for basic rights, MateSzabo, declared that the bill should give thoseunder surveillance the right to appeal the matterand seek legal remedy against any encroachmentof their rights in the process. But this remark wasignored in the final version of the law. The HCLUsaid that the new bill is unconstitutional even if theperson in question signs a document to give theirconsent to the surveillance. The ombudsman is theonly one who has the right to appeal to the ConstitutionalCourt – civil rights groups do not. LastJune, Szabo initiated a constitutional review. Heraised concerns over a lack of external control overthe monitoring process and the fact that agencieswould not be required to provide a concrete reasonor aim for the monitoring activity, which wouldgive the state an unfair power advantage over theindividual targeted in the surveillance. Despite theprotests, the amendment was enforced on 1 August2013. However, while the Constitutional Court decisionmade in March 2014 repealed the amendment,a new parliament set up in late May did not followthe court’s decision, meaning that the amendmentstood. The Constitutional Court declared in itsdecision that legislation allowing for secret observationon officials in positions requiring nationalsecurity screening for 30-day periods twice a yearis unconstitutional. According to the top court’sruling, permanent surveillance and secret informationgathering would disproportionately restrictthe target’s privacy rights. The body also threwout stipulations that prevented targeted personsfrom seeking legal remedy, such as an appeal to arelevant parliamentary committee against the monitoringprocedure.The other story which shows the government’stotalitarian attitude to the right to privacy is thatin 2013 Hungary appeared on the list of thosecountries where the infamous governmental spysoftware package called FinFisher is used, accordingto Citizen Lab. Citizen Lab is an interdisciplinarylaboratory based at the University of Toronto (Canada),focusing on the intersection of informationand communication technologies, human rightsand global security. FinFisher’s customers can onlybe governments and in using the software, Hungaryjoined a group of countries where oppressiveregimes are in power. FinFisher is a very sophisticatedsoftware package which is able to createaccess to all data on the infected computer, includingemails, document files, voice over internetprotocol (VoIP) calls, etc. There were few reactionsin Hungary when this news was published, but Átlátszó(Transparent), 1 a Hungarian NGO fighting forfreedom of information, submitted a public informationrequest to the Constitution Protection Office on17 October 2013. It asked the Office to disclose thelength of time and the number of times the governmentused spy software packages, and it asked itto list those that are in use. Within a week the ConstitutionProtection Office had sent a letter, andrefused to respond to their questions, referring tonational security interests. According to the websiteof the Office, “the aim of the Constitution ProtectionOffice is to protect citizens and the constitutionalorder of Hungary, and to guarantee their security.(…) Its special duty is to provide Hungary with suchinformation for decision making which is not obtainablefrom other sources.” 2While all these unfortunate events happenedin Hungary, the First European Constitutional Courtsuspended the Data Retention Directive after thedecision of the Court of Justice of the EU (CJEU). TheCJEU declared this April, among other objections,that the interference is not proportionate and thatthe Directive failed to apply those safeguards whichwere also missed in the Hungarian implementationand in other national legislation. However,the Hungarian authorities did not immediately reactto the news (e.g. in neighbouring Slovakia theConstitutional Court preliminarily suspended theeffectiveness of the Slovak implementation of theData Retention Directive right after the decision ofthe CJEU).ConclusionsThe following conclusions can be drawn from thisreport:• Data retention in general and by definition violatesour right to privacy.1 www.atlatszo.hu2 ah.gov.hu/english• It is necessary to apply certain safeguards: theneed for judicial authorisation, court oversight,or any other external supervisory mechanism;authorities should not have direct access todata stored by service providers; there is an obligationto inform the person concerned aboutthe use of his/her data; there is an obligationto inform the person who was under surveillance;there is an obligation to destroy the dataafter the end of investigative proceedings; andthere is an obligation to delegate independentexperts to inspect and monitor the process ofdestroying the data.• Surveillance mechanisms which target innocentpeople by collecting information about themsimply because they are in certain positionsserving the state cannot be justified and shouldbe taken as unconstitutional. One example ofthis is the amendment of the Hungarian NationalSecurity Law, which aims to surveil peoplewho are completely innocent, simply to controlthem and their private lives. Such acts cannotbe justified in a democracy.Action stepsThe following advocacy steps are taking place andrecommended for Hungary:• Citizens and human rights NGOs are planningto initiate a lawsuit against service providers inorder to know what personal data is being retainedby the providers.• Following the recent decision by the CJEU, Hungaryshould revise its law on data retention.• Hungary should get back onto the democraticroad when it comes to surveillance and modifythe National Security Law according to the ConstitutionalCourt ruling.• The use of spy software packages should bemore transparent and regulated by law as well.The Constitution Protection Office should havean obligation to make such data publicly availablefor everybody.• The need for transparency is obvious. The intersectionbetween national security, surveillance,law enforcement, the role of private companies,citizens’ private data and their right to privacyneeds to be clear. Transparency reports preparedby companies involved in data retentioncan be one useful tool to know what is happeningin this area. For example, Vodafone made anattempt to publish certain information on this inits worldwide report.134 / Global Information Society Watch hungary / 135