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September 04, 2006
Big Brother EU vs. The House of Lords
By Waldemar Ingdahl
After 911 many governments have started to give their police forces and various their security agencies more powers to track and monitor the citizens’ locations, movement patterns, their communications and interactions.
In the US the Patriot Act may have created and provided the Department of Homeland Security with an ample range of much debated powers, but it still initiated a public debate both in the mainstream media and in the blogosphere about integrity and the citizens' right to anonymity in their electronic communications.
In Europe much more far-reaching steps have been taken with much less debate. The EU Committee of the UK’s House of Lords published the report Behind Closed Doors. It exposes how the ministers of justice of Germany, France, Italy, Spain, Poland and the UK held a meeting in Heiligendamm this March in order to discuss their joint response to terrorism, illegal immigration and organised crime behind closed doors. The EU has previously decided to facilitate the access of information between the members’ police forces. At the same time the EU decided to sharply delineate the regulations for this according to The Hague Programme, a policy document adopted in 2004 regarding crime fighting and immigration. The Hague Programme, delineates the EU’s ambitions to "balancing the need to share information among law enforcement and judicial authorities with privacy and data protection rights" with the scales tipping towards the integrity side.
"Behind closed doors" shows that the ministers would like tilt the balance towards less privacy and decreased data protection rights.
The report sharply criticized that then Home Secretary Charles Clarke so clearly deviated from the policy the government advocates in the public debate in the UK, while agreeing to another policy behind locked doors.
This is not the first time it has been done, as the meeting in Heiligendamm was not part of the formal EU collaboration. The ministers were bypassing the EU in order to not have to wait for the due process of reaching an agreement with the other countries.
Unfortunately, the smaller members can play this game too. For instance, Sweden's minister of justice Thomas Bodström has often tried to widen the police’s authority through bypassing the Swedish parliament and getting a policy accepted as a Directive from the EU. Then he does not have to take the political debate in Sweden, simply stating that it is a decision from Brussels that has to be adopted, although being instrumental to said Directive being drafted.
When EU Directives are to be implemented member states are granted a degree of levy in the interpretation. The trouble is that the implementation might be interpreted in the strictest way since the member states governments have themselves been those pushing the agenda. That may push the implementation of the Directive in a far too strict direction than intended by the Commission.
The trend is disconcerting. The decision to institute a mandatory retention of communication data was far beyond the reach of anything proposed in the US. On March 15th 2006 the new EU directive 2006/24/EC was presented, stipulating that telephone companies and internet service providers would be ordered to store for each communication:
1) the telephone number, IP-number, name and address of the transmitter
2) the telephone number, IP-number, name and address of the receiver
3) data identifying if the communication is made by telephone, cellular, IP-telephone or e-mail
4) data identifying the communication equipment used (for instance the IMSI and IMEI- codes for cellulars and DSL-lines for fixed broadband)
5) the geographical position of the cell-ID under the whole time of communication in order to
When comparing the plans for implementing passports with biometric information (such as finger prints and DNA) and immigration control through the Schengen Information System (SIS) with the US, Europe stands out as the more ambitious through the Schengen III agreement signed last year between Germany, Spain, France, Luxembourg, The Netherlands, Austria, and Belgium.
Wire tapping of telephones and other telecommunications does require a court order in the US, which is not the case in all European countries.
The pressure is enormous on European Internet Service Providers to build in surveillance in their systems. This represents huge cost for the ISP companies, the software industry, and the telecom operators not only in monetary terms, as governments are prone to shift the costs for integrating the surveillance systems to them, but also in terms of trust from their customers. If users start doubting the loyalty of their communication systems it could harm the adoption of advanced technologies.
We lack a European debate on these issues. The public debates are strictly national, while the decisions are made in Brussels, all too often behind closed doors. The report from the House of Lords was beneficial, but there is a need for more watch groups, both within the government but especially from civil society.
911 taught us that crime and terrorism in the 21st century does not stop at borders, so it is necessary for legal authorities to cooperate, but the governments' guarantees for our civil liberties should not stop at national borders either. If they do, they create a quite dangerous vacuum of accountability. The US certainly has its problems in this respect too, but their main advantage is the insistence on accountability, to always have someone responsible for the actions taken. This accountability is lacking in Europe today.
Last time Finland held the presidency they stressed the need for police cooperation, but also for the extension of civil rights. Hopefully they will be able to start where they left off.
Posted by Waldemar at September 4, 2006 11:15 AM