Despite the shock provoked by the Snowden revelations, mass surveillance is still a reality in the EU. However, over the past few years, it has been possible to observe a gradual constitutionalization of these practices. This Article maps the ongoing process of progressively defining the constitutional limits and societal affordances of mass surveillance in the EU by focusing on the three main actors who contribute to it. First, this Article presents civil society as the propeller of this trend. Civil society not only advocated for a ban on general surveillance systems in the aftermath of the Snowden revelations, but also promoted a series of strategic litigations to challenge state surveillance practices at national and EU levels. Second, it analyses CJEU case law as the main constitutionalizing engine of this process. The Court pragmatically ascertained that an absolute prohibition of mass surveillance did not appear to be a realistic solution and put significant effort into actively defining the legal boundaries of these practices by striving to find an equilibrium between Member State interests and citizens’ fundamental rights. Third, it considers the approaches taken by national legislators to be a slowing factor. States are still reluctant to incorporate the constitutional standards progressively developed by courts despite the now significant body of judicially created parameters in the field.

The use of facial recognition technology (FRT) as a form of intelligence has recently made a prominent public appearance in the theater of war. During the early months of Russia's invasion of Ukraine, Ukrainian authorities relied on FRT as part of the country's defensive activities, harnessing the technology for a variety of purposes, such as unveiling covert Russian agents operating amid the Ukrainian population; revealing the identity of Russian soldiers who committed war crimes; and even identifying dead Russian soldiers. This constellation of uses of FRT—in a war increasingly waged on the digital and information front—warrants ethical examination. The essay discusses some of the most serious concerns with FRT in the context of war, including the infringement of informational privacy; the indiscriminate and disproportionate harms it may inflict, particularly when the technology is coupled with social media intelligence; and the potential abuse of the technology once the fog of war dissipates. Some of these concerns parallel those to be found in nations that are not engulfed in war, but others are unique to war-torn settings.

Every day across the world, as people assemble, demonstrate and protest, their pictures, their messages, tweets and other personal information are amassed without adequate justification. Arguing that they do so in order to protect assemblies, governments deploy a wide array of measures, including facial recognition, fake mobile towers and internet shutdowns. These measures are primarily analyzed as interferences with the right to privacy and freedom of expression, but it is argued here that protest and other assembly surveillance should also be understood as an infringement of freedom of assembly. This is necessary not only to preserve the distinct nature of freedom of assembly that protects collective action, but also to allow for better regulation of surveillance and interference with internet communications during assemblies.

Diagnostic testing to identify patients infected with severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) plays a key role to control the coronavirus disease (COVID-19) pandemic. While several countries have implemented the use of diagnostic testing in a massive scale as a cornerstone for infection control and surveillance, other countries affected by the pandemic are hampered by its limited testing capacity. Pooled testing was first introduced in the 1940s and is now used for screening in blood banks. Testing is done by pooling multiple individual samples together. Only in the case of a positive pool test would individual samples of the pool be tested, thus substantially reducing the number of tests needed. Several studies regarding their use for SARS CoV-2 have been done in the United States, Israel, and Germany. Studies have shown that an individual positive sample can still be detected in pools of up to 32 samples, and possibly even 64 samples, provided that additional polymerase chain reaction (PCR) amplification cycles are conducted with a sensitivity of 96%. Simulation studies to determine optimal pool size and pooling techniques have also been conducted. Based on these studies, pooled testing is shown to be able to detect positive samples with sufficient accuracy and can easily be used with existing equipment and personnel for population-wide screening.

At the behest of the Roosevelt administration in 1935, the U.S. Senate established a special committee to investigate lobbying activities by opponents of the “death sentence” of the Public Utility Holding Company Bill. Chaired by Hugo L. Black (D-Ala.), the “Black Committee” expanded its mission into a more general probe of anti–New Deal organizations and individuals. The committee used highly intrusive methods, notably catch-all dragnet subpoenas, to secure evidence. It worked closely with the IRS for access to tax returns and with the FCC to obtain copies of millions of telegrams. When the telegram search became public information, there was a major backlash from the press, Congress, and the courts. Court rulings in 1936, resulting from suits by William Randolph Hearst and others, not only limited the committee’s powers but provided important checks for future investigators, including Senator Joseph McCarthy.