On September 5th, the LIBE Committee held the first of a series of hearings as part of the inquiry on “Electronic Mass Surveillance of EU Citizens” established on July 10 by the Libe Committee. The purpose of this inquiry is to investigate the NSA and other surveillance programmes, and examine whether those programmes are compatible with EU law.
Need for protection of media freedom
The importance of investigative journalism and the need to protect whistleblowers were the opening issues of what is going to be a long fact-finding mission on behalf of Members of the LIBE inquiry.
“Lawmakers have a role to protect investigative journalism and to promote this kind of debate”, said Alan Rusbridger, editor in chief of the Guardian – the U.K.-based newspaper that first revealed the NSA secret spying programs based on Snowden’s disclosures. Invited to testify on the impact of surveillance on media freedom, Rusbridger warned MEPs about the chilling effects of the post-PRISM scenario both on press freedom and on the democracy itself. “If we imprison our own whistleblowers in the West, what message do we send to potential whistleblowers in dictatorship countries?”, said Rusbridger referring to the harassment that many journalist and whistleblowers have been subject to in both side of the Atlantic.
On the need for EU legal protection for media freedom, Rusbridger stressed that “European journalists don’t have the same protection as US journalists”, underlining that Article 10 of the European Convention on Human Rights (right to freedom of expression) “doesn’t have the same weight” as the US Constitution’s First Amendment.
“Please find ways to protect journalism. It is only journalism that will give you an impartial view”, he asked MEPs.
The implications of surveillance on fundamental rights
Jacob Appelbaum, independent computer security researcher, addressed the European Parliament on the consequences of surveillance on privacy and freedom of speech. In his remarkable speech, Appelbaum outlined that in the ancient world spying was about a state on another state, mainly for political reasons. What we are seeing now, he said, is an economical espionage on behalf of democratic states on their own citizen – without their knowledge or consent. This has obviously tremendous consequences both on freedom of expression and on privacy of global communications.
As pointed out by the American journalist, the US is not bound by EU data protection law, and this has allowed the US to deploy for several years “lawful interception programmes” and to put under surveillance every citizen on this planet.
When members of the LIBE committee asked for concrete solutions to this massive surveillance, Appelbaum – who is also leader of the Tor Project – a free software implemented to ensure privacy of communications – urged them to secure the privacy of their communications and to reduce their global “information emission rate”. He explained that while it is unlikely that NSA will stop the large scale collection of data, citizens can make this massive surveillance meaningless by lowering the economy of their data through encryption tools (e.g. cryptophone, text secure).
“What we’re seeing here is that the architecture of these systems is left vulnerable on purpose”, pointed out Appelbaum. “We have to distribute secure systems without backdoors. Only this will give us the right to speak freely”, he concluded.
Lack of democratic oversight on surveillance program
Jacques Follorou, journalist at the French newspaper Le Monde, highlighted that the major problem in France is that domestic intelligence activities are not subject to any political or administrative scrutiny. Appelbaum echoed Follorou, saying that the major cause of these extensive spying programs is indeed the lack of judicial oversight. “These kinds of programmes are extremely terrifying because they are not democratic by their very nature. They are secret, they are without oversight.”
Follorou sadly recognised that technology will always be ahead of law, and this make it even more necessary for lawmakers to put in place a judicial oversight system, “a meaningful one”, he said.
Learning from the past mistakes
During this first hearing, MEPs also discussed the similarities between the PRISM program and the ECHELON system. ECHELON is the code name used to describe a global spy network operated on behalf of five countries, also referred as “the five eyes”: Australia, Canada, New Zealand, the United Kingdom, and the United States.
During 2000 and 2001, a temporary committee of the European Parliament investigated into the existence, capabilities and the political implications of this spying system. However, Duncan Campbell, investigative journalist and author of the STOA report “Interception Capabilities 2000”, explained that the existence of ECHELON was easier to prove because the interception capabilities at that time were more evident (e.g. towers, satellites and stations aimed to intercept communications).Campbell outlined how in the last 12 years the risk of surveillance have been exacerbated by the use of modern interception techniques, such as those allowing data to be transferred directly from the client to the server directly (the so-called upstream).
Given the many similarities with the investigations into the ECHELON system, the Chair of temporary committee in charge with the dossier, MEP Coelho (EPP, PT) and its rapporteur, former MEP Schmid (S&D, GM) were also invited by the member of the LIBE inquiry to share their experiences to ensure a more effective solution to the present surveillance programs.
What emerged from their testimony is that although the investigations confirmed the existence of a massive spying program capable of interception and content inspection of telephone calls, fax, e-mail and other data traffic globally, members of the European Parliament at that time failed to endorse the Resolution resulting from the investigation because of the delicate political situation. “We had the proofs of this spying but no one put them on the table due to an emotional solidarity with our American ally after the 9/11 attacks,” they said.
For the two MEPs responsible of the ECHELON report this was a major error, and they warned they colleagues to do not make the same mistake now that they are dealing with the revelations of a massive electronic surveillance of EU’s citizens.
Second EP Hearing: Rethinking EU-US Agreements?
During the second hearing of the LIBE inquiry held on September 12th in Strasbourg, MEPs discussed the implications of NSA spying revelations for key EU-US agreements – such as Safe Harbour (on privacy principles), the Terrorist Finance Tracking Programme (TFTP) and the Passenger Name Record (PNR).
In a first session of the hearing – that happened behind closed doors – MEPs were briefed on the results of the meeting between EU and US data protection experts last July. In the second session, Jacob Kohnstamm, Chairman of the Article 29 Working Party (national and EU data protection supervisors) shared his views on the impact of surveillance programmes on the privacy of EU’s citizens.
Based on the revelations appeared on media, Kohnstamm firmly stated that the fundamental rights of EU citizens have been infringed upon. “Our right to privacy, our right to secrecy of correspondence, our right to data protection, all that rights that form the foundation of trust in the relationship between governments and citizens, are at stake”, he said.
Kohnstamm stressed the urgent need for clarification about the involvement of the FISA Court into NSA surveillance programs to ensure that orders authorising surveillance of non-US persons under US legislation are narrowly targeted. He also highlighted the need for intelligence supervision and high level of scrutiny of spying programs like PRISM and TEMPORA.
“Necessity and proportionality are to be taken into highly account before fundamental rights are infringed for national security purposes”. This was the main recommendation of the Chairman of the Article 29 Working Party.
Kohnstamm concluded proposing what according to him is the only solution to the discussion on massive electronic surveillance: adding a protocol to article 17 (right to privacy) of the International Covenant on Civil and Political Rights in order to reinforce the protection of private life. “It’s time to start discussing a global rights of privacy of communications”, he concluded.
During the third hearing held on September 24th, members of the LIBE inquiry discussed the potential suspension of EU-US Terrorist Finance Tracking Programme (TFTP), after media reported on NSA alleged tapping of the SWIFT company’s international bank-transfer.
LIBE Series Posts
Series 10 and 11: IT security of the EU institutions and discussions on mass surveillance
Series 7, 8, and 9: Violation of law, IntCen & mas surveillance in EU member states and freedom
Series 6: Safe Harbour under scrutiny by the European Parliament
Series 5: The “policy of empty seats” shakes Members of European Parliament
Series 4: Civil Society and former whistleblowers weigh in
Series 3: MEPs call for suspension of the counter terrorism cooperation with the US ally
Series 1 and 2: The European Parliament launches its investigation on extensive spying