In the course of the recent public focus on both US-American and European national surveillance programmes, noteworthy revelations have come to light: most programmes are focused on the surveillance of IT-based communication between foreigners and between citizens and foreigners. This fact has often been employed as a mitigating argument within the national legal and policy discourses. At the same time, all agencies conduct, and widely rely upon, the exchange of intelligence information. This may in some cases amount to a factual circumvention of surveillance laws and constitutional rights, because it can allow wider indirect access to domestic communications through this process of information sharing. This paper examines some of the possible loopholes and ‘dents’ in the law, and exposes risks against which fundamental rights do currently not protect. Finally, it collects and briefly assesses possible legal answers to this phenomenon from the fields of public international law and global constitutionalism.
