A year ago, the European Parliament adopted a comprehensive resolution on the impact of US and European mass surveillance programmes on EU citizens’ fundamental rights, which included a list of seven recommendations in the form of a “European Digital Habeas Corpus“.
Today, the European Parliament adopted the second report on the implementation of the Habeas Corpus, examining the state of play of surveillance programmes. The non-binding report finds that there hasn’t been sufficient action taken to reform surveillance practices that affect individual rights. It also criticises the establishment of new surveillance measures in a large number of EU countries. Finally, the report calls for member states to drop charges against Edward Snowden and grant him whistleblower protection.
EU member states: More surveillance, less privacy
Only two years after the Snowden revelations, the outcry among leaders in the EU against US mass surveillance programmes seems to have faded. The outrage and strained diplomatic relations have been replaced by the creation of copycat surveillance measures. The United Kingdom is reviewing the notorious Data Retention and Investigatory Powers Act, or DRIPA, which introduces excessive data retention mandates. France has passed its Intelligence Law, subsequently followed by a new disproportionate Surveillance Law which authorises its government to intercept international and domestic communications on a mass scale with limited oversight or judicial remedy. The Hacking Team scandal has shed light on the partnership between governments and companies in the global surveillance industry. Germany is advancing a new Data Retention Law which includes unjustified measures and lacks legal certainty. In the past several months, the threats to digital human rights in the EU have multiplied.
European Commission: No reform ahead
The European Commission has remained silent in response to the Parliament’s recommendations in the first report, which asked for urgent reform to address interferences with human rights. The Commission is failing in its duty as a Guardian of the Treaties, as it has decided not to take action in response to EU member states’ extension of data retention mandates. These new mandates appear to be in contradiction of the EU Court of Justice ruling that invalidated the Data Retention Directive. The Commission has also refused to examine the French Intelligence Law, claiming that “the EU is not a fundamental right super cop”. The Commission chose not to suspend the US-EU Safe Harbour agreement despite acknowledging its shortcomings and Parliament’s recommendation to do so in its first mass surveillance report. The agreement was then passed to the EU Court of Justice for further investigation. Eventually — on the back of a single individual’s complaint — the Safe Harbour agreement was invalidated by the Court for putting individuals’ data protection rights and privacy at risk.
The role of the Court: A fundamental rights watchdog
During the LIBE Committee debate, the EU Court of Justice emerged as a central issue. Many Parliamentarians voiced their discontent with the lack of legislative accountability in the EU and questioned why, despite their many objections, it takes a public scandal of some kind before problems are addressed. If the European Parliament continues to conclude that there isn’t enough action being taken to reform surveillance practices that affect individual rights, and EU countries continue to pass new surveillance measures, perhaps we will see a new, stronger centralized privacy regulator emerge.
While it’s hard to find positive developments on the legislative front, the report rightfully acknowledges efforts made by several national parliaments and governmental bodies to conduct detailed inquiries into mass surveillance activities. These include inquiries by the German Bundestag, the Council of Europe, the Brazilian Senate, and the United Nations. The report also takes note of the work of numerous civil society actors that have “raised general awareness regarding electronic mass surveillance”. In addition, the report applauds initiatives by information technology companies to increase privacy for clients and enable the use of end-to-end encryption.
Access Now welcomes the work of the LIBE committee in preparing this report. In light of the numerous policy and legislative shortcomings that have been identified, we urge the European Commission and European member states to immediately initiate comprehensive reform of current surveillance measures and put an end to human rights violations. In doing so, we recommend that the governments apply the Necessary and Proportionate principles, and use its implementation guide to ensure compliance with international human rights law.