How the EU is watching you: the rise of Europe's surveillance state
Signs of the Times
sott.net
Open Europe
Mon, 26 Oct 2009 12:30 EDT
As ratification of the EU Lisbon Treaty draws closer, new research from Open Europe warns that the Treaty will help accelerate moves towards an EU surveillance state.
The Lisbon Treaty marks a significant shift of power from national governments to the EU in the field of justice and home affairs. It will lead to an increase in the volume and scope of EU legislation, which is already having a profound impact on EU citizens' civil liberties and privacy.
As well as measures on asylum and immigration policy, EU ministers and the European Commission are currently negotiating a raft of controversial new proposals, which are set to radically increase the EU's role in policing, criminal, and security matters. EU leaders hope to reach formal agreement on many controversial new initiatives by the end of the year.
They include: a target to train a third of all police officers across the EU in a "common culture" of policing; the mass collection and sharing of personal data including DNA records into an EU-wide database; controversial surveillance techniques including 'cyber patrols'; the creation of a fledgling 'EU Home Office' with powers to decide on cooperation on police, border, immigration and criminal justice issues; an EU "master plan" on information exchange; the transfer of criminal proceedings among EU member states; a three-fold increase in the number of controversial EU arrest warrants; access to other member states' national tax databases; and EU laws on citizens' right to internet access, among many other things.
However, despite these significant plans, the current Swedish EU Presidency has said that, with the Lisbon Treaty nearly in place, the current proposals are too "modest" and that the EU should increase its "level of ambition" in the field of justice and home affairs policy.
Under Lisbon, national governments will lose their veto power to block legislation in the field of justice and home affairs, while the European Commission will be given greater power to draw up new laws, and the European Court of Justice (ECJ) will be responsible for enforcing them.
The UK Government's claim that under Lisbon the UK will maintain independence and can 'pick and choose' which justice and home affairs policies it opts into is a smokescreen. In practice, the UK has often been a key driver of policy, and has in some instances even exported domestic initiatives to the rest of the EU, particularly those that increase the power of the state over the individual. The most prominent examples of where the UK has pushed the agenda include the Data Retention Directive, the use of Passenger Name Records collected by travel companies and the European Arrest Warrant.
This method of 'exporting' UK initiatives to the EU is akin to policy making via the back door, circumventing adequate democratic controls.
Open Europe Analyst Stephen Booth said:
"Ratification of the Lisbon Treaty will see powers over justice and home affairs policy almost completely shifted to the EU level. How can citizens expect their fundamental rights to liberty and independence from the state to be protected by unaccountable institutions which have a vested interest in creating more laws?"
"With its talk of the UK's 'opt-ins' on justice and home affairs, the Government has attempted to hood-wink its citizens into thinking they will somehow be unaffected by the Lisbon Treaty. The reality is that the UK has often been at the forefront of the EU's most invasive and controversial laws in this field, using the EU to bypass the democratic scrutiny of the UK Parliament."
"We are fast approaching a situation where the EU will have the full coercive machinery of a state but without the proper democratic controls or robust checks on power that citizens should expect."
Click here to read the briefing (pdf).
See below for a synopsis some of the measures already in place and those still under negotiation.
Notes For Editors
1. For more information, please contact Stephen Booth on 00 44 (0)207 197 2333 or 0044 (0)7881 625 889.
2. Open Europe is an independent think-tank calling for reform of the European Union, with offices in London and Brussels.
Its supporters include: Sir Stuart Rose, Executive Chairman, Marks and Spencer plc; Sir Crispin Davis, Former Chief Executive, Reed Elsevier Group plc; Sir David Lees, Chairman, Tate and Lyle plc; Sir Henry Keswick, Chairman, Jardine Matheson Holdings Ltd; Lord Sainsbury of Preston Candover KG, Life President, J Sainsbury plc; Sir John Egan, Chairman, Severn Trent plc and Lord Kalms of Edgware, President, DSG International plc; Hugh Sloane, Founder, Sloane Robinson.
For a full list, please click here
Measures Already Agreed Or In Force
Access to the UK's DNA database, which is five times larger than the EU average
The 2005 Prüm Treaty, which became EU law in 2007 and was described by the European Data Protection Supervisor as "a laboratory for cross border exchange of information"1, allows the exchange of all DNA, fingerprint and vehicle data between national police authorities between member states. This is of particular concern to UK citizens because around 5.2 percent of the UK population's DNA data is held on record, compared with an EU average of only 1.1 percent.2
This is likely to lead to the UK being subject to a great deal more requests for DNA data than other member states. The huge cost of the operation will be funded directly by UK taxpayers.
The UK had been invited to take part in negotiations for the Prüm Treaty but declined to do so because it contained provisions which the Government found 'unacceptable'.3 However, it signed up to the Treaty when it was later incorporated into EU law in 2007.
EU-funded research in 'Orwellian' security technologies
The EU, through the Commission and its European Security Research programme4, is actively involved in the development of new technologies for the purposes of security. Projects currently funded5 by the Commission's research programme include the Orwellian-sounding "INDECT" project which includes the "monitoring of various people clusters and detection of abnormal behaviour and situations of danger"6. The project, at a total cost of €14,863,988, is two-thirds funded by EU taxpayers, via the EU budget.
EU rules on the mandatory storing of citizens' communications data are now out of the hands of national governments
The EU's Data Retention Directive, which was fast-tracked under the UK's EU Presidency in 2005, requires telephone operators and internet service providers to store data regarding every phone call, text message, email and website that their users access and make it available to government authorities. Sir Paul Kennedy, the UK's Interception of Communications Commissioner, has revealed that in 2008 a total of 504,073 requests were made to access communications data, the equivalent of one request every minute.7
This law was passed in the UK Parliament with minimal debate. The Conservatives' Shadow Security Minister Baroness Pauline Neville-Jones said, "The Government cannot expect us to support an instrument where there is such uncertainty over what it will do and how it will work in practice."8
Crucially, the UK lost its veto on data retention. Due to a decision by the European Commission, and upheld by the ECJ, the legal base of the legislation was altered, allowing the proposal to be passed by qualified majority vote rather than by unanimity. The UK could therefore in future be outvoted on any changes to the legislation.
Biometric passports: a blueprint for an EU-wide ID card?
The use of biometric passports, which includes data on fingerprints, the iris of the eye, and other facial features, is now a standard EU requirement following a European Council Regulation in 2004. The EU Regulation requires that biometric identifiers for EU citizens are compatible with the EU's key databases for sharing information between member states and their police forces. So, while the data is currently held nationally, in effect, an EU-wide system for the wholesale sharing of biometric data of all EU citizens is only one step away.
Granting authorities and the public access to information about people's health
In 2007, the EU's so-called Inspire Directive9 entered into force. The Directive includes common provisions for data on public health, including requirements for authorities to make information about citizens' personal health available to both authorities in other member states and the public.10
The Swedish Data Inspection Board - a governmental agency set up to protect the individual's privacy in the information society - has warned that this provision could seriously threaten individuals' right to privacy.11
EU-US data exchange and extradition treaties lacking national democratic accountability
The EU has recently renewed an agreement with the US to allow its officials access to private banking data contained in a database operated in Europe by SWIFT.12 The secrecy surrounding the decision has been subject to widespread criticism. EU JHA ministers decided to ignore their own legal experts' advice which said that the European Parliament should have co-legislative powers on the issue. The Swedish EU Presidency was left to conduct negotiations on behalf of the whole EU.
The Swedish Parliament's EU Scrutiny Committee - which must give its assent before the Swedish government signs up to an EU decision - was given only 30 minutes notification via a text message to prepare a decision on the agreement, and was given no documents to inform it on what the decision was about.13
Meanwhile, in June this year the EU agreed a new extradition agreement with the US14, which allows for speedier processing of extradition requests. The EU-US agreement allowed member states to agree their own more far-reaching extradition arrangements, and the UK has a bilateral deal with the US that does so15, but as the Liberal Democrats' Shadow Home Secretary Chris Huhne warned, "If this becomes an EU-wide arrangement, it could be even more difficult for any future government to unpick. This would do nothing to prevent more cases like the unfair extradition of Gary McKinnon."16
Parliamentary scrutiny of this important decision was virtually non-existent. The UK Government originally said that it would only be able to present the UK's Parliament's EU committees with a confidential text of the agreement, excluding the possibility of full scrutiny from the rest of Parliament.
After putting pressure on the Government and the EU Presidency the committees were eventually given less than a month to review it publicly but by that time, the negotiations between the EU and the US had been concluded. The House of Lords Committee said:
"The decision of the Presidency to retain the 'confidential' classification on these Agreements after the negotiations between the EU and the US had been concluded and their content had been agreed both by the EU Member States and by the US was unnecessary and contrary to the democratic accountability that ought to inform decisions by EU institutions regarding access to documents."17
What To Expect Next:
The harnessing of all available technology and data to create an "EU master plan on information exchange"
Beatrice Ask, Swedish Minister for Justice, has said that, "There is distinct need to work out an 'EU master plan on information exchange between law enforcement authorities'".18
The EU plans to make all member states share passenger name record (PNR) data collected by travel companies, which includes passengers' names, travel agent or airline contact, ticket number, itinerary of at least one segment of the journey and the name of the person making the booking. It can also include age, fare details, form of payment, home address, passenger phone number and special meal requirements.
The EU already has a data-sharing agreement with the US on PNRs, and the European Commission website makes clear that the US Department of Homeland Security can access passenger data including on such sensitive areas as racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership or information concerning the health or sex life of the individual.19
While the current proposal envisages using the PNRs as part of efforts to combat terrorism and organised crime, the UK wants to see the use of PNR data across the EU extended beyond terrorism and organised crime to any "serious crime" as well as immigration control. The UK Government is also seeking to extend the proposal's scope from just air travel to cover other forms of travel, such as by train or sea.
Controversial surveillance techniques including 'cyber patrols'
One of the more controversial surveillance techniques being promoted within the EU is the use of remote computer searches or 'Trojan Horses' which record users' computer activity and relay it to security agencies. In November 2008, the European Commission announced an EU Cyber Crime Strategy agreed with the Council20 which called on the use of "remote searches, cyber patrols for online tracking of criminals and joint investigations across borders."21
Allowing people to be tried in UK courts for offences that aren't crimes in the UK?
15 member states, (not including the UK), have proposed a common set of rules within the EU for the transfer of criminal proceedings between member states. The aim of the proposal is to "concentrate criminal proceedings" in a particular country for offences that are committed in more than one member state or where one member state has jurisdiction.
However, the proposal contains a controversial provision which appears to allow someone to be tried in the UK courts for an offence that isn't a crime under UK law. Article 5 states:
1. "For the purpose of applying this Framework Decision, any Member State shall have competence to prosecute, under its national law, any offence to which the law of another Member State is applicable.
2. The competence conferred on a Member State exclusively by virtue of paragraph 1 may be exercised only pursuant to a request for transfer of proceedings."22
The House of Commons European Scrutiny Committee remarked:
"Article 5 is both novel and far-reaching: it gives national courts competence to try a criminal offence that is not prescribed by UK law - or, put another way, that the Government has not proposed nor Parliament agreed should be a crime. Instead, jurisdiction comes from the EU Member State that is transferring the proceedings."230
The creation of a committee on EU "internal security" - a fledgling EU Home Office?
The Lisbon Treaty allows for the creation of a new EU Committee on Internal Security (COSI), which will be established under the European Council. The EU's three JHA bodies, Eurojust, Europol and Frontex, would all be represented on the Committee, and the decision to set this up would be taken by a simple majority of those states that decide to participate (the UK is expected to do so).
The Lisbon Treaty is very vague about what role this Committee could take on in future, but a Memo from the UK Government reveals that the Committee would effectively decide how police, border, immigration and criminal justice authorities would deal with cross-border matters, meaning this could be the beginnings of what is effectively an 'EU Home Office'.24
The Committee would not produce legislative decisions, but could propose legislation to the Council. The Committee is also to become involved in applying the controversial 'solidarity clause', another innovation of the Lisbon Treaty creating an obligation on member states to help other member states in times of terrorist attack or natural or man-made disasters, and also to prevent the "terrorist threat" (Article 222 TFEU).
Despite the fact that the Lisbon Treaty is not yet in force, negotiations are ongoing about how the Committee will look and work in practice. According to the UK Government Memo in September 2009, the decision to establish COSI could be taken "as early as within a few weeks of the Lisbon Treaty entering into force." The paper says that discussions about the role and remit of the Committee have taken place in Government departments including the FCO, CO, HMRC and MoJ, as well as departmental agencies such as SOCA.
A target to train one third of European police officers in "European affairs" in order to create a "common culture"
The Commission argues that in order to foster a common culture of EU policing it should aim "to train one third of European police officers and border guards in European affairs over the next five years."25
In addition, member states are increasingly relying on the EU's policing and judicial bodies, Europol and Eurojust. In 2007 over 1000 cases were referred to Eurojust, compared to 192 in 2002.26 However, this is only part of the story as evidence suggests that for the majority of cases member states circumvent the formal EU agencies. In 2008, the House of Lords' EU Select Committee noted that: "The vast majority of information exchanges between liaison bureaux occurs outside the formal systems...It is reported that up to 80% of bilateral engagement occurs this way."207
A potential three-fold increase in the number of UK citizens extradited under the European Arrest Warrant
The controversial European Arrest Warrant (EAW) means that member states can no longer refuse to surrender their own nationals to other member states, removing ministerial power over the extradition of UK citizens. Member states' legal and judicial systems still differ substantially and, as a result, the EAW has led to extradition in cases that would have been unlikely to lead to prosecution in the UK. For example, in one recent case, a person was successfully extradited following the alleged purchase of a stolen mobile phone in Poland worth about £20.28
The extradition of UK citizens to face trial in states that may not enforce the same standards of legal and judicial procedure is set to be an increasing occurrence. The implementation of a new data sharing system across member states will see the use of EAWs greatly increased. The Home Office estimates that it will see arrests under the EAW in the UK "rise to between 1050 and 1700" from the "504 EAW arrests made in the UK in 2007".29
Greater harmonisation of legal and judicial systems
With more and more cooperation between member states' law enforcement agencies and judicial bodies, the next 'logical step' is for greater harmonisation of legal systems and processes. The Commission has called for judgements on civil matters which are "essential to everyday life", such as "succession and wills, matrimonial property rights and the property consequences of the separation of couples" to be subject to 'mutual recognition', whereby a judicial decision taken in another member state should be recognised and executed in all other member states.
The Lisbon Treaty sets out a legal basis to legislate for the mutual recognition of legal judgments in both civil and criminal cases. The problem is that mutual recognition is intended to lead to legal harmonisation. In 2004, the House of Common cross-party European Scrutiny Committee said:
"We draw attention to the danger that measures which are ostensibly concerned with mutual recognition will have the effect of creating uniform rules which will then apply to all cases...Commission proposals on the 'area of freedom security and justice' have appeared to treat this 'area' as synonymous with a unitary State, with only one legal system."30
The proposal to extend the principle of mutual recognition to more civil matters therefore poses a potentially fundamental challenge to the independence of member states' legal systems, which have evolved over lengthy periods of time.
A centralised EU database of personal data that increases the risk of mistakes, abuse and corruption
The Commission has proposed a huge central database, bringing together three existing databases.31 They contain information about, for example, people wanted for arrest and extradition, third country nationals to be denied entry to any of the Schengen states, missing people and stolen property. The database would also include the use of "biometric data, in particular fingerprint and photographic data, but probably also in due course DNA profiles and retina scans"32 and store "data on up to 70 million people".33
A major concern with such a large centralised database is that it will be open to abuses or unintentional errors that result in either the data falling into the wrong hands or, more worryingly, miscarriages of justice. Former Swedish Justice Minister Thomas Bodstrom has warned that, "It is commonly known that databases are abused. The bigger they are and the more people who have access to them, the greater the risk of mistakes, abuse and corruption."34
The expansion of a joint EU intelligence agency
Since 2005, the EU's so-called Joint Situation Centre (SitCen), made up of intelligence analysts, has increasingly been used to share national intelligence and counter-terrorism information, giving it a greater role in JHA. SitCen, which reports directly to the EU High Representative for Foreign and Security Policy, is a highly secretive body which operates out of the public eye and away from parliamentary scrutiny.35
A report by the shadowy 'Future Group' in 2008 mentioned the SitCen and suggested its role should be developed.36
And Javier Solana, the EU's current High Representative for Common Foreign and Security Policy has said,
"The threats we are facing today are not national threats terrorism they are international threats. Therefore, to put together the intelligence which is international with intelligence which is national will be a very important step forward in the coordination of the European Union."37
The expansion of what is effectively the beginning of an EU 'secret service' raises fundamental questions of political oversight in the member states.
Sources
1. Evidence to House of Lords' European Select Committee: 'Prüm: An effective weapon against terrorism and crime', 9 May 2007, Minutes of Evidence, p32
2. Home Office, 'DNA Expansion Programme 2000 - 2005: Reporting Achievement', p5, October 2005
3. House of Lords' European Union Select Committee, 'Prüm: An effective weapon against terrorism and crime', 9 May 2007, p12
4. See here
5. For a full list of projects currently funded by the EU, see here
6. See 'Intelligent information system supporting observation, searching and detection for security of citizens in urban environment'
7. Telegraph, 10 August 2009
8. Hansard, 24 March 2009, Column 627
9. Directive 2007/2/EC of the European Parliament and of the Council, see here
10. Dagens Nyheter, "DI varnar för direktiv från EU", 17 March 2009, see here
11. Datainspektionen, " Genomförande av Inspire-direktivet i svensk lagstiftning; förslag till ny miljöinformationslag och - förordning m.m.", 13 March 2009
12. See Euobserver, 23 November 2006
13. Swedish Television, 31 July 2009
14. The Parliament, 8 July 2009
15. For an analysis of the UK-US extradition agreement see, Justice, 'Briefing on Extradition to the USA: The UK-US Treaty of March 2003 and the EU-US Agreement of June 2003', July 2003
16. Press release, 6 July 2009
17. 15 July 2003
18. Speech at the College of Europe, Brussels, 4 March 2009
19. European Commission, 'The Passenger Name Record (PNR): FREQUENTLY ASKED QUESTIONS', MEMO/07/294, 13 July 2007
20. See Council's conclusions here
21. European Commission press release, 27 November 2008
22. Draft framework decision on the transfer of proceedings in criminal matters, available at here
23. European Scrutiny Committee, 'Transfer of criminal proceedings', 2 July 2009
24. Home Office, 'Explanatory memorandum on EU documents: Council Decision on setting up the standing committee on operational cooperation on internal security', 2 September 2009
25. COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL: An area of freedom, security and justice serving the citizen, p15; see here
26. European Commission, "Justice, Freedom and Security in Europe since 2005: An evaluation of the Hague programme and action plan", p25, June 2009
27. House of Lords EU Select Committee, 'EUROPOL: Co-ordinating the fight against organised crime', p22-3, November 2008
28. Cited in Liberty, 'Liberty's Second Reading Briefing on the Policing and Crime Bill in the House of Lords - Part 6, Extradition', p12
29. Home Office, 'Impact Assessment of Schengen amendments to Extradition Act 2003', 16 December 2008, p3
30. House of Commons EU Scrutiny Committee, 'Twenty-eighth report', 14 July 2004, p16, Section 42
31. Computing.co.uk, 25 June 2009
32. House of Lords EU Select Committee, 'Schengen Information System II', March 2007, p20
33. Commission press release, 12 June 2007
34. See Svenska Dagbladet, 16 August 2009
35. See here for more: Secret Truth, the EU Joint Situation Centre, Jelle van Buuren, 2009
36. Statewatch.org
37. EUbusiness, 9 June 2004
