Category: 1.1 News from the Area of Freedom, Security and Justice

Daily news from the Area of Freedom, Security and Justice.

Mostly Found via:
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European Media Monitor – http://emm.newsbrief.eu/overview.html
Réseau Universitaire Européen Droit de l’Espace de Liberté, Sécurité et Justice – http://gdr-elsj.eu/

Passenger Name Records, data mining & data protection: the need for strong safeguards

EXCERPTS FROM EXPERTS’ OPINION SUBMITTED TO THE COUNCIL OF EUROPE (PUBLISHED ON THE STATEWATCH SITE)

by Douwe KORFF and Marie GEORGES (FREE-Group Members)

Introduction

Much has been said and written about Passenger Name Records (PNR) in the last decade and a half. When we were asked to write a short report for the Consultative Committee about PNR, “in the wider contexts”, we therefore thought we could confine ourselves to a relatively straightforward overview of the literature and arguments.

However, the task turned out to be more complex than anticipated. In particular, the context has changed as a result of the Snowden revelations. Much of what was said and written about PNR before his exposés had looked at the issues narrowly, as only related to the “identification” of “known or [clearly ‘identified’] suspected terrorists” (and perhaps other major international criminals). However, the most recent details of what US and European authorities are doing, or plan to do, with PNR data show that they are part of the global surveillance operations we now know about.

More specifically, it became clear to us that there is a (partly deliberate?) semantic confusion about this “identification”; that the whole surveillance schemes are not only to do with finding previously-identified individuals, but also (and perhaps even mainly) with “mining” the vast amounts of disparate data to create “profiles” that are used to single out from the vast data stores people “identified” as statistically more likely to be (or even to become?) a terrorist (or other serious criminal), or to be “involved” in some way in terrorism or major crime. That is a different kind of “identification” from the previous one, as we discuss in this report.

We show this relatively recent (although predicted) development with reference to the most recent developments in the USA, which we believe provide the model for what is being planned (or perhaps already begun to be implemented) also in Europe. In the USA, PNR data are now expressly permitted to be added to and combined with other data, to create the kinds of profiles just mentioned – and our analysis of Article 4 of the proposed EU PNR Directive shows that, on a close reading, exactly the same will be allowed in the EU if the proposal is adopted.

Snowden has revealed much. But it is clear that his knowledge about what the “intelligence” agencies of the USA and the UK (and their allies) are really up to was and is still limited. He clearly had an astonishing amount of access to the data collection side of their operations, especially in relation to Internet and e-communications data (much more than any sensible secret service should ever have allowed a relatively junior contractor, although we must all be grateful for that “error”). However, it would appear that he had and has very little knowledge of what was and is being done with the vast data collections he exposed.

Yet it is obvious (indeed, even from the information about PNR use that we describe) that these are used not only to “identify” known terrorists or people identified as suspects in the traditional sense, but that these data mountains are also being “mined” to label people as “suspected terrorist” on the basis of profiles and algorithms. We believe that that in fact is the more insidious aspect of the operations.

This is why this report has become much longer than we had planned, and why it focusses on this wider issue rather than on the narrower concerns about PNR data expressed in most previous reports and studies.

The report is structured as follows. After preliminary remarks about the main topic of the report, PNR data (and related data) (further specified in the Attachment), Part I discusses the wider contexts within which we have analyzed the use of PNR data. We look at both the widest context: the change, over the last fifteen years or so, from reactive to “proactive” and “preventive” law enforcement, and the blurring of the lines between law enforcement and “national security” activities (and between the agencies involved), in particular in relation to terrorism (section I.i); and at the historical (immediately post-“9/11”) and more recent developments relating to the use of PNR data in data mining/profiling operations the USA, in the “CAPPS” and (now) the “Secure Flight” programmes (section I.ii).

In section I.iii, we discuss the limitations and dangers inherent in such data mining and “profiling”.

Only then do we turn to PNR and Europe by describing, in Part II. both the links between the EU and the US systems (section II.1), and then the question of “strategic surveillance” in Europe (II.ii).

In Part III, we discuss the law, i.e., the general ECHR standards (I); the ECHR standards applied to surveillance in practice (II, with a chart with an overview of the ECtHR considerations); other summaries of the law by the Venice Commission and the FRA (III); and further relevant case-law (IV).

In Part IV, we first apply the standards to EU-third country PNR agreements (IV.i), with reference to the by-passing of the existing agreements by the USA (IV.ii) and to the spreading of demands for PNR to other countries (IV.iii). We then look at the human rights and data protection-legal issues raised by the proposal for an EU PNR scheme. We conclude that part with a summary of the four core issues identified: purpose-specification and –limitation; the problem with remedies; “respect for human identity”; and the question of whether the processing we identify as our main concern – “dynamic”-algorithm-based data mining and profiling – actually works.

Part V contains a Summary of our findings; our Conclusions (with our overall conclusions set out in a box on p. 109); and tentative, draft Recommendations. (…)

Conclusions Continue reading “Passenger Name Records, data mining & data protection: the need for strong safeguards”

How the EU “legislative triangle” is becoming a “Bermudes, triangle “…

by Emilio De Capitani

According to several scholars the Lisbon Treaty has strengthened the implementation of the democratic principle in the EU as well as the framework for participative democracy. In theory with entry into force of the Charter the EU has become more accountable to its citizens and there has been a clear improvement of the legal framework for EU legislative and non legislative activity. Even if not perfectly sound) there is now a clear definition of what should be considered of “legislative” nature and there is now a clear obligation (at primary law level) to debate publicly both in the Council and in the European Parliament.

Needless to say, the latter has been for years the champion of legislative and administrative transparency not only in the citizens interest but also in view of the definition of its own marge of maneuver during the negotiations with the Council. This former EP attitude was not particularly appreciated by the Council and the Commission when in 2001, before Lisbon, the three institutions negotiated the first EU legislation in this domain. (Regulation 1049/01). However at the time it was easy to say that time was needed to promote open debates and votes in the Council and in the Commission because it would had required a change of culture in an institution mainly structured as a bureaucratic machinery (the Commission) or in an other framed by a diplomatic approach (the Council).

Five years after Lisbon such a change of culture in the Council and the Commission is it under way or is the other way round for the EP?

Have a look to the exchange of messages below and make your own opinion. The issue is still pending but risks to have some interesting developments… Continue reading “How the EU “legislative triangle” is becoming a “Bermudes, triangle “…”

Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020

ORIGINAL PUBLISHED HERE ON 23 JUIN 2015

par Pierre Berthelet, CDRE

Le Professeur Panayotis Soldatos comparait il y a peu l’Union européenne à Prométhée enchaîné par les Etats membres. Ces réflexions mettant en évidence une construction européenne dépendante des États, « dont les élites politiques, écrit-il, se refusent à admettre la réalité de l’obsolescence de la souveraineté nationale », s’illustrent parfaitement avec l’adoption par le Conseil de la stratégie européenne de sécurité intérieure pour la période 2015-2020.

À première vue, la sécurité intérieure vient de franchir un pas supplémentaire dans l’intégration avec l’approbation par le Conseil le 16 juin 2015, de conclusions renouvelant et modernisant pour cinq années à venir la stratégie 2010-2014. Pour autant, il semble bien que les chaînes soient pesantes, car les États conservent la main, et de main ferme pourrait-on dire, le processus d’intégration dans ce domaine.

Ces conclusions entraînent une série de réflexions critiques quant aux conséquences institutionnelles et quant à la manière dont les États décident d’œuvrer dans la construction européenne en matière de sécurité intérieure.

Elles suscitent d’emblée des interrogations concernant l’inclusion du Parlement européen dans le processus décisionnel lié au déroulement du cycle, ainsi que sur la préservation accrue des droits fondamentaux (1).
Continue reading “Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020”

STATEWATCH : the migrant crisis in the Mediterranean

Published on Statewatch

Key Analysis and Documents

1.   Statewatch Special Report: “War” to be declared on migrants: “Structured border zones”
2.   EU: Letter from Commissioner Avramopolous to Ministers with Annex
3.   EU: MED-CRISIS: Official statement on the launch of EUNAVFOR
4.   Statewatch Briefing: Coercive measures or expulsion: Fingerprinting migrants
5.   Statewatch Analysis: The EU’s Planned War on Smugglers
6.   Council: Secret plan for a war on smugglers – document (PSC)
7.   Council Press Release: 18 May 2015
8.   European Commission: A European Agenda on Migration
9.   Mission in the Med: financial support under the ATHENA Decision
10. European External Action Service: Libya, a Political Framework for a Crisis Approach (EUBAM)
11. Ongoing EU external operations (European External Action service)

NEWS

1.   EU: German-Italian-French non-paper on EU migration policy
2.   EU: European External Action Service (EEAS): European Union Naval Force
3.   EU: European External Action Service (EEAS): EU prepares to go to “war” in the Med
4.   EU: No agreement on sharing “relocation” of migrants
5.   EU: Council of the European Union: LIMITE documents: Migration – Policy debate
6 . Liquid Traces – The Left-to-Die Boat Case (Vimeo, link)
7.   EU: Recommendation of XXX on a European resettlement scheme
8.   EU: The new EU Migration Agenda takes shape: analysis of the first new measures
9.   EU:   MED CRISIS: Press coverage
10. EU: ACP: Destroying boats is not a solution to migration
11. EU: European Parliament: Migration: MEPs debate EU response.”

Key Analysis and Documents

1. Statewatch Special Report: “War” to be declared on migrants who – fleeing from war, persecution and poverty – have arrived in the EU are to be contained and detained in “Structured border zones” to be set up to “ ensure the swift identification, registration and fingerprinting of migrants (“hotspots”)”

This is set out in the Draft Conclusions of the European Council [the EU Heads of State] meeting on 25 and 26 June 2015: Draft conclusions (pdf)

Section 5.c says: “the setting up of structured border zones and facilities in the frontline Member States, with the active support of Member States’ experts and of EASO, Frontex and Europol to ensure the swift identification, registration and fingerprinting of migrants (“hotspots”);” [emphasis added]
Will the “swift fingerprinting” of those described here as “illegal” migrants involve coercive measures? See: Statewatch Briefing on a “Working Document” issued for discussion by the Commission: Coercive measures or expulsion: Fingerprinting migrants (pdf):

“If the data-subject still refuses to cooperate it is suggested that officials trained in the “proportionate use of coercion” may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject..”

Statewatch Director, Tony Bunyan comments: “Where is the EU going? Migrants, including pregnant women and minors, who have fled from war, persecution and poverty are to be forcibly finger-printed or held in detention until they acquiesce or are expelled and banned from re-entry.”

Steve Peers, Professor of Law, University of Essex comments on the Draft Conclusions: “It is remarkable that Member States (if this draft is accepted) are indeed willing to accept the relocation of 40,000 asylum-seekers from Italy and Greece, and 20,000 resettled refugees.
It is also notable that all Member States will participate in the latter decision – with even the UK agreeing recently to resettle a few hundred more Syrians. This is a very modest amount of the numbers needing protection however.
The European Asylum Support Office does not seem to have the powers to participate in fingerprinting asylum-seekers, and the reference to ‘bringing together’ rules on fast-tracking asylum applications is very vague. Is the intention to lower standards, and if so, how exactly? Any moves to negotiate more readmission agreements and to expel more people who supposedly have no need for protection will have to comply fully with EU, ECHR and all national and international human rights standards.
Equally if Frontex is to gain more powers over expulsion it must be made more fully accountable, including as regards individual complaints against it.”

See: UN says one million refugees should be no problem for EU (euractiv, link): “The UN rights chief yesterday (15 June) called for the European Union to take bolder steps to address its swelling migrant crisis, insisting the bloc could easily take in one million refugees”

2. EU: Jailing migrant families together with convicted criminals: A desperate EU policy to deter irregular migration by Steve Peers, Professor of Law, University of Essex:
“Taken together, the loss of these protections will mean that irregular migrants, including irregular migrant families, will not only be detained in ordinary prisons, but mixed in with the ordinary prison population of convicted criminals and those awaiting trial for serious crimes. Moreover, their capacity to challenge their detention by means of judiicial review will be severely curtailed.
Coupled with the recent Commission paper offering guidelines for using force, including against pregnant women, on migrants who refuse to be fingerprinted, this represents a significant turn in EU policy – turning toward direct and indirect threats of physical violence to control their behaviour and induce them to leave.
To say the least, this is hard to square with the EU’s frequent professions of support for the human rights and decent treatment of migrants.”
See: Letter from Commissioner Avramopolous to Ministers with Annex (Statewatch version, 75KB) orlink to Council’s 10.5 MB version (pdf)

3. EU: MED-CRISIS: Official statement on the launch of EUNAVFOR: Council launches EU naval operation to disrupt human smugglers and traffickers in the Mediterranean (Council of the European Union, pdf):
“The first phase focuses on surveillance and assessment of human smuggling and trafficking networks in the Southern Central Mediterranean…. The Council will assess when to move beyond this first step, taking into account a UN mandate and the consent of the coastal states concerned..” [emphasis added]
It is by no means certain that a UN mandate will be forthcoming as this requires the consent of the affected states, in this case Libya. The EU’s own mission in Libya, EUBAM, withdrew from from the country last autumn, has been slimmed down and is now based in Tunisia because of the highly unstable security situation in Libya where two separate governments are vying for power in addition to a number of warring groups:.See:

EU and political situation in Libya: Interim Strategic Review of EUBAM Libya (LIMITE doc no: 7886-15, 13 April 2015, pdf): “a number of additional considerations have arisen as a result of the mission’s relocation to Tunis. The mission’s legal status in Tunis is still unclear, with the Tunisian authorities unofficially indicating that they would prefer not to explore the issue….its presence in Tunis will make it difficult for mission staff to assess conditions and operate in Libya“ [emphasis added]

4. Statewatch Briefing: Coercive measures or expulsion: Fingerprinting migrants (pdf):
New guidelines released by the European Commission allow Member States to use physical and mental coercive measures to take fingerprints of migrants and asylum seekers entering Europe, including minors and pregnant women. If they refuse, they face detention, expulsion and a potential five year EU-wide ban.
“If the data-subject still refuses to cooperate it is suggested that officials trained in the proportionate use of coercion may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject..” [emphasis added]

5. Statewatch Analysis: The EUs Planned War on Smugglers (pdf) by Steve Peers, Professor of Law, University of Essex:
“it is clear from the documents discussed in the EUs Political and Security Committee last week that (unless plans have changed radically in the meantime) the High Representative is being economical with the truth. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life not only of smugglers but also of Member States forces and refugees. In effect, the EU is planning to declare war on migrant smugglers without thinking through the consequences.”

6. Secret EU plan for a war on smugglers – document (PSC, pdf)

7. Press Release: Council establishes EU naval operation to disrupt human smugglers in the Mediterranean (pdf) and Comparison between Draft and Final Statements (pdf)

8. European Commission: A European Agenda on Migration (COM 240-15, pdf)

9. Mission in the Med could call for financial support under the: ATHENA Council Decision (pdf)

10. European External Action Service: Libya, a Political Framework for a Crisis Approach (LIMITE doc no: 13829-14, pdf)

11. Ongoing EU external operations (European External Action service, pdf)

NEWS

1. EU: German-Italian-French non-paper on EU migration policy (pdf) and Letter (pdf). Includes:
– Dialogue with source/transit countries: At upcoming EU-Africa summit in Malta “we should also discuss the relationship between migration and mobility and their impact on development, the promotion of fair trade and the strengthening of security cooperation as well as return and readmission issues”
– Proposal for EU CSDP civilian mission in Niger: EUCAP Sahel Niger to become permanent and “work even more closely with Nigerien authorities in the fight against smuggling and trafficking in human beings”
– Adequate funding for continued “engagement” with countries in the Horn of Africa, to deal with migration from/through those countries (in the recent ISF-Police work programme some money was put aside for this, see: Annual Work Programme for 2015 for support to Union Actions under the Internal Security Fund – Police cooperation and crime prevention (pdf)
– “We must increase the effectiveness of return and readmission programmes”
And: “Our migration policy goals should relate to other relevant horizontal foreign policies such as counter-terrorism, maritime security, water and climate policy and a reviewed European Neighbourhood Policy which also considers the neighbours of our neighbours.”

2. EU: MED-CRISIS: European External Action Service (EEAS): European Union Naval Force – Mediterranean (Press statement, pdf): Contributing States: Currently 14 Member States (BE, DE, EL, ES, FI, FR, HU, IT, LT, LU, NL, SE, SI, UK):
“The Council shall assess whether the conditions for transition beyond the first phase have been met, taking into account any applicable UN Security Council Resolution and consent by the Coastal States concerned.”
Consent is needed for the EU to act within the territorial waters of another state (eg: Libya) and see: Comments below on this position.

See also: EU foreign ministers to agree on Mediterranean intelligence operations (euractiv, link): “EU foreign affairs ministers will today (22 June) agree on an intelligence gathering operation, the first phase of the bloc’s response to the burgeoning migration crisis in the Mediterranean, but military action against people smugglers will depend on the support of Libya’s National Unity Government and the United Nations.” and Naval bid to tackle migrants in Med (Yahoo News, link): “With GCHQ – Britain’s listening post in Cheltenham – said to be tracking the activities of smuggling gangs moving people to the Libyan coast, Defence Secretary Michael Fallon indicated that he wanted to see more intelligence-sharing.” also:Exclusive: France backs Italy-UK Plan for Sicily Intel Cell (Migrant Report, link)

See: EU agrees to launch military operation against people smugglers (FT, link): “EU officials have warned that casualties were possible after deciding to launch military action against people smugglers in the Mediterranean. Ministers of the 28-country bloc meeting in Luxembourg on Monday gave the go-ahead for a c controversial intelligence gathering operation, which will precede full-blown military action this year … “The use of firepower will be done in such a way that we do all we can to prevent any casualties to anyone,” said one EU official. “There is a difference between smugglers and migrants. If they are migrants, we will be even more cautious.” Asked whether the military operation created the risk of collateral casualties, the official replied: “Of course it would.”” and: EU navies take up position in Mediterranean(euobserver, link)
3. EU: European External Action Service (EEAS): EU prepares to go to “war” in the Med: Proposal of the High Representative of the Union for Foreign Affairs and Security Policy to the Council for a Council Decision launching the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (pdf);
“The Operation Plan and the Rules of Engagement concerning the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) are approved…. EUNAVFOR MED shall be launched on xxx 2015.”
See: EU naval mission for Med gets green light (Politico, link)
See also: Draft Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (LIMITE doc no: 8921-15, pdf) and Proposal for for a Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR Med) (LIMITE doc no: 8731-15, pdf): This contains details on:
Mission: “The Union shall conduct a military crisis management operation contributing to the disruption of the business model of human smuggling networks… systematic efforts to dispose of vessels and assets before they are used by smugglers”
Mandate: includes: “boarding search, seize and diversion of smuggling ships”
“The Operation Headquarters of EUNAVFOR MED shall be located in Rome, Italy”
“PSC shall exercise the political control and strategic direction of EUNAVFOR MED” [Political Security Committee]
“The EUMC shall monitor the proper execution of EUNAVFOR MED conducted under the responsibility of the EU Operation Commander” [EU Military Committee]
“The Council hereby authorises the PSC to invite third States to offer contributions”

4. EU: No agreement on sharing “relocation” of migrants: Council of the European Union: Justice and Home Affairs Council, 15-16 June 2015, Luxembourg: Final press release (pdf):
“As regards the concrete proposal on relocation, Ministers stressed that on the basis of the principle of solidarity they are all ready to make an effort to help member states under a particular migratory pressure. Several delegations stressed the necessity to strike the right balance between solidarity and responsibility.. Ministers invited the Council’s preparatory bodies to continue these discussions with the aim of achieving full implementation as soon as possible.”
See also; Civil Liberties Committee Chair, Claude Moraes, regrets EU minister’s failure to reach agreement on the migration package (EP Press release, pdf)

5. EU: Council of the European Union: LIMITE documents: Migration – Policy debate & European Council draft Conclusions
– European Agenda on Migration – Policy debate (LIMITE doc no: 9825-15, 11 June 2015, pdf) Many areas of disagreement between Member States on how to respond to the crisis in the Mediterranean:
“”Immediate Action” but also builds on four pillars as a basis for a comprehensive European migration policy: – Reducing incentives for irregular migration; – Border management; – Strong common asylum policy; – New policy on legal migration….
There is wide consensus with regard to the need to further cooperate with third countries since both the root causes of and solutions to migration related issues can be sought there. In order to ensure a genuinely comprehensive approach, some Member States have suggested to strengthen the links with the Internal Security Strategy and measures proposed therein….
Member States’ views differ on the proposed concept of relocation in order to respond to high volumes of arrivals that includes temporary scheme for persons in need of international national protection.. The total number of persons to be relocated, the available funding, and the capacity of the Member States’ structures to deal with relocation were equally questioned…” [emphasis added]
and: Update: COR -1 (LIMITE doc no: 9825-15, 12 June 2015, pdf)

– European Council (25 and 26 June 2015) – Draft guidelines for the conclusions (LIMITE doc no: 8392-15, 10 June 2015, pdf): Covers Mediterranean crisis response, security challenges, economic issues, the Digital Agenda and the UK:
Position on “1. “Relocation / resettlement p.m.” is blank as is Position: “IV. UK p.m” and “Return policy:Mobilise all tools to promote readmission of unauthorised economic migrants to countries of origin and transit….” [emphasis added]
read the restraint manual.

6. Liquid Traces – The Left-to-Die Boat Case Vimeo, link): “Liquid Traces offers a synthetic reconstruction of the events concerning what is known as the “left-to-die boat” case, in which 72 passengers who left the Libyan coast heading in the direction of the island of Lampedusa on board a small rubber boat were left to drift for 14 days in NATO’s maritime surveillance area, despite several distress signals relaying their location, as well as repeated interactions, including at least one military helicopter visit and an encounter with a military ship. As a result, only 9 people survived.” See also: Left ot die – report (link)

7. EU: MED-CRISIS: Germany and France urge Commission to revise immigration plan (euractiv, link): “Germany and France on Monday (1 June) urged the EU to find a fairer way to admit and distribute asylum seekers, as their leaders met the European Commission chief in Berlin….. France and Germany said in the joint statement that they currently were among five member states, along with Sweden, Italy and Hungary, that “are in charge of 75% of the asylum seekers”. “This situation is not fair and no longer sustainable,” they said.”
See European Commission: Recommendation of XXX on a European resettlement scheme (COM 286-15, pdf) and Annexes (pdf)

8. EU: MED-CRISIS: European Commission: Recommendation of XXX on a European resettlement scheme (COM 286-15, pdf): It was going to be 5,000 people, then 40,000 now:
“The Commission recommends that Member State resettle 20 000 people in need of international protection”
and Annexes (pdf)

8. The new EU Migration Agenda takes shape: analysis of the first new measures (EU Law Analysis, link)

9. EU: MED CRISIS: Press coverage:
EU’s refugee plans need a reality check: The EU this week outlined plans to resettle and relocate refugees, but one expert taking a closer look at the proposals argues they put the rights of migrants and asylum seekers at risk. (The Local, link) Good critique of EU plans

EU border chief wants protection from armed smugglers: The EU’s border agency Frontex wants military protection from armed migrant smugglers as it expands operations in the Mediterranean and closer to the Libyan coast (euobserver, link)

British tourists complain that impoverished boat migrants are making holidays ‘awkward’ in Kos(Independent, link)

Mediterranean migrant crisis: Hundreds rescued off Sicily (BBC News, link) and Migration: Are more people on the move than ever before? (BBC, link) with map

Italy Hands Smuggler Unprecedented Life Sentence as Europe Prepares for Migrant Deluge (BB, link)

Tunisian – and Top E.U. Generals – Fear Mission Creep Madness in Libya (The Daily Beast, link): “A newly revealed classified document and a history of grave misjudgments warn against the dangers of the new EU plan to stop migrants…. Europe’s defense chiefs are warning their political superiors that the planned military mission to stop migrant-smuggling boats crossing the Mediterranean can lead to land operations in Libya and possible clashes with the Islamic State’s affiliate in that failing North African state, a turn of events bound to threaten neighboring Tunisia’s fragile equilibrium still further.”

Tunisian PM Speaks Against EU Military Action to Stop Refugee Smugglers (Sputnik News, link):
“Tunisia opposes any military effort by the EU to tackle refugee smuggling across the Mediterranean Sea, Prime Minister Habib Essid said Thursday. “Tunisia’s position was always clear… We are originally against all military action, both to regulate political conflict and to regulate the problem with illegal smugglers,” Essid said in the European Parliament.”

Migrants en Méditerranée : la Tunisie contre toute intervention militaire [Migrants in the Mediterranean: Tunisia against all military intervention] (rtbf.be, link):
“Habib Essid said that his country is “against any military intervention to solve this problem. This problem must be resolved upstream and downstream. These people take risks, sell everything they have around them to come to Europe, for more freedom, for better economic opportunities for work. I know the problems this poses for all countries of the European Union, but the solution is to look other than make occasional military interventions.”
The European Parliament press release does not mention these comments: Tunisia’s Prime Minister Habib Essid on security and migration challenges (pdf)

Before the Boat: Understanding the Migrant Journey (MPI, link): “Deep, sophisticated insight into the decision-making process of those who undertake these journeys is necessary; without this information and a wider understanding of the political economy of migrant smuggling, policymakers essentially are making decisions in the dark.”

10. EU: MED-CRISIS: ACP: Destroying boats is not a solution to migration (euractiv, link): “The Secretary-General of the ACP (African, Caribbean and Pacific) group of states said yesterday (21 May) that his organisation was against the EU’s idea of destroying the boats of human traffickers, who make fortunes by luring prospective immigrants into risky journeys across the Mediterranean.”

And see: Twisting the ‘lessons of history’ to authorise unjustifiable violence: the Mediterranean crisis (Open Democracy, link): “More than 300 slavery and migration scholars respond to those advocating for military force against migrants attempting to cross the Mediterranean. This is no slave trade. Where is the moral justification for actions that cost lives?”

Also: “The War on migrants and refugees: has the ‘never again’ imperative been forgotten?” (Franck Duvell, link): “This imperative derived from the lessons learned from the Holocaust and the failure to rescue the European Jews has now been relinquished it seems. Are we now back at the moral state of the 1930s were unwanted populations are removed from the ‘realm of moral subjects’ (Bauman 1996) and killed or left to die and the needy are turned away and refused shelter?”

11. EU: European Parliament: Migration: MEPs debate EU response (pdf): “MEPs discussed on 20 May European Commission plans to tackle the large numbers of migrants seeking to reach the European Union, often risking their lives at sea. Commission vice president Frans Timmermans and migration commissioner Dimitris Avramopoulos announced a number of measures, including an emergency mechanism for relocating migrants, a resettlement scheme to take in migrants from countries outside the EU and more funds for securing borders.”

See also: MEPs angry at member states over immigration (euractiv, link): “EU lawmakers on Wednesday accused some member states of passing the buck by rejecting a Brussels plan for binding quotas for refugees making the dangerous Mediterranean crossing.”

Meijers Committee : Promoting Intra EU labour mobility of international protection beneficiaries

Original published on the Meijers Committee (*) site

Summary : The Meijers Committee proposes to enhance the opportunities for employment of international protection beneficiaries across the EU by allowing them to work in another Member State after two years of legal residency and under more favourable conditions than current EU directives allow. This incentive for achieving economic independence corrects the current legal regime under which socioeconomic criteria play no role in sharing the responsibility for asylum-seekers and international protection beneficiaries. It also allows for greater personal freedom of the people concerned and gives them a better chance of building a stable future. The proposed measure draws largely from that existing framework in terms of rights and obligations of individuals and Member States.

1. Introduction

The Council of the EU is currently discussing new approaches to sharing the responsibility for asylum seekers and international protection beneficiaries among Member States. The Meijers Committee advises that these discussions should move beyond the issue of distributing asylum seekers and also explore the possibilities of enhancing intra-EU movement for persons who have been granted asylum.
In this note, the Meijers Committee proposes to allow international protection beneficiaries recognised in one Member State to take up a confirmed job offer in another Member State.
Granting beneficiaries of international protection free movement within the EU on objective conditions of having work and not becoming a burden on the social assistance system of another Member State contributes to the economic dynamism of the Union and helps relieve the pressure on those Member States whose asylum systems are particularly burdened and where socioeconomic conditions are generally less then favorable. It also enhances the prospects that the beneficiaries of international protection will better integrate by increasing their economic opportunities.

Finally, it stresses that these third-country nationals may be an asset to the EU rather than a burden or a problem.

To that purpose, the Meijers Committee proposes to apply elements of the free movement regime for EU workers to international protection beneficiaries and to complement these with certain conditions which have already been worked out in the regime for conditional labour mobility of international protection beneficiaries who have acquired EU long-term resident status and other relevant EU instruments. This note sets out the main features of such a measure.

2. Subject of the proposal

Introduce a supplementary measure to the existing system of distribution of asylum seekers and international protection beneficiaries or to a possible quota system, which permits international protection beneficiaries recognised in one Member State to take up a confirmed job offer in another Member State. This allows a distribution of beneficiaries of international protection between Member States on the basis of employer’s needs and the economic activities of third-country nationals.

The beneficiaries may gain a confirmed job offer in a second Member State by looking in EURES or by using his or her right to travel up to three months within a single period of six months in the Schengen area. Most likely the people involved will look for work in Member States where family or contacts reside.
Permit vacancies in other Member States be taken up by third-country nationals already lawfully in the EU, rather than introduce new third-country nationals from outside the EU.
Avoid or diminish long-term unemployment, dependence on social benefits or irregular employment in the Member State that granted international protection by granting the beneficiaries conditional mobility within the Union.

3.Existing framework for labour mobility within the EU

There are at present several EU regimes for labour mobility for different categories of persons:

Free movement of EU workers and their Non-EU family members under Directive 2004/38 (Citizenship).
Conditional labour mobility of third-country nationals who acquired the status of an EU long-term resident in one Member State by allowing them to accept a job in another Member State under Directive 2003/109 (Long Term Residents). The latter State may refuse a work permit and admission during the first year on labour market grounds. Since 2013, beneficiaries of international protection have been covered by this Directive on the basis of Directive 2011/51.
Directive 2009/50 (Blue Card) for highly qualified workers from outside the EU.
Directive 2014/66 (Intra Corporate Transfer) for third country nationals.
Proposal to recast and merge the Students and Researchers Directive (COM(2013) 151 final), including a period for a third-country national to search for employment after graduation from a European education institute.

Although Directive 2011/51 has provided international protection beneficiaries with a right to reside in a second Member State to exercise an economic activity, this right is subject to strict conditions. It is only acquired after five years of lawful residence in the first Member State.

Further, the second Member State may, during the first year, apply a labour market test, under which preference may be given to Union citizens and third-country nationals who are legally resident and receive unemployment benefits in the second Member State. However, there are good reasons to allow free movement of international protection beneficiaries on more favourable terms.
Other third-country nationals are normally only admitted to a first Member State if they meet conditions of having work, resident family members with sufficient income, or have been admitted as a student, in short because of their socioeconomic bond with the destination country. International protection beneficiaries, on the other hand, often do not have self-evident bonds with the first Member State due to the nature of their residence (asylum) and the Dublin criteria for allocating asylum seekers.
The measure proposed by the Meijers Committee would help correct this effect.

4.Growing experience with labour mobility of third-country nationals within the EU

Actual, large-scale use of the Long-term residents Directive 2003/109 started only five years after the directive had to be implemented in national law of the 25 Member States bound by it.
Italy and Spain had both issued permits to more than 1.8 million EU long-term residents by the end of 2013. Mobility to another Member State commenced only recently. Germany issued 1,500 residence permits to third-country nationals who had acquired the EU long-term resident status in 2012, and 3,000 in 2013. At the end of 2013 Germany had issued more than 5,500 residence permits to third-country nationals who had acquired the EU long-term resident status in another Member State, and at the end of 2014 almost 10,000 such permits had been issued, mainly to third-country nationals arriving from Italy, Slovenia, Spain and the Czech Republic.¹

5. Legal elements

Is there a legal basis in the Treaties?
Yes, Article 78(2)(a) TFEU obliges the Union to provide a uniform status of asylum for nationals of third countries, valid throughout the Union. The exception of Article 79(5) TFEU (“Member States may determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work”) does not apply, since the third-country nationals are already lawfully resident in the EU.

Does the proposal satisfy the subsidiary requirements?
The legal position of international protection beneficiaries regarding labour mobility is already regulated by Directive 2011/51, provided they are long term residents pursuant to Directive 2003/109. The proposed mobility between Member States requires a common action. The EU is currently looking for a common solution to the question of responsibility for asylum seekers and international protection beneficiaries. This measure would address part of that question.

Is this proposal proportionate?
The proposed measure is simple and relatively easy to achieve: it requires a limited amendment of the existing legal framework, which consists primarily of directives or a short new directive. The competence to check whether the proposed employment conditions are in conformity with national law remains with Member States.

What should the personal scope be?
Given the similarity of their status, both refugees and subsidiary protection beneficiaries should be covered. Beneficiaries of forms of national protection cannot be covered by an instrument under EU law as there is no legal basis for such in the TFEU. But they could be covered on the basis of national law of the second Member States.

What should the personal scope be? (II)
For workers only. The right to move arises only if a labour agency of the second Member State confirms the existence and conditions of the job offer and that job provides sufficient resources for the third-country national to sustain himself, without recourse to social assistance in the second Member State.

When can an international protection beneficiary apply for a job in another Member State?
After a minimum of two years of lawful residence in the first Member State, rather than the five years under the revised Directive 2003/109. In those two years the beneficiaries will have an opportunity to settle in a Member State and, if necessary, supplement their professional qualifications. Moreover, this waiting period reduces the chances that the protection status is granted primarily to allow onward mobility within the EU.

Is transfer of international protection status necessary?
The proposal requires no rules on automatic transfer of international protection between Member States, similar to Directive 2011/51 revising Directive 2003/109.

What terms regarding health insurance apply?
Health insurance coverage maybe be required by the second Member State, similar to Article 15(2)(b) of Directive 2003/109.

Are integration requirements allowed?
No integration conditions before admission to the second Member State. Such conditions are also absent from the Qualification Directive 2011/95.

6.Rights in the second member state

Protection against refoulement
Protection status is granted on the basis of similar rules as in Directive 2011/51. Similarly, the rules of Directive 2011/51 on protection against expulsion to third countries, the right to return to the first Member State until long-term resident status in the second Member State is obtained, and the concomitant obligation of the first Member State to take the third-country national back will apply.

Equal treatment
The equal treatment clause of Article 11 of Directive 2011/98 (Single Permit) will apply automatically to these third-country nationals admitted to employment.

Family reunification
Family reunification should take place on the basis of the same rules as Article 16 of Directive 2003/109, i.e. if already reunited in the first Member State, admitted family members may accompany or join; if not yet reunited in the first Member States, the rules of Directive 2003/86 apply, such as a residence permit for at least one year and sufficient income.

Public assistance
No right to public assistance during the first three years, and after that transitional period access to public assistance as provided in Article 11 of Directive 2003/109.

Recognition of professional qualifications
Recognition of professional qualifications acquired in another Member State by the second Member State should take place on the basis of a regime similar to Directive 2005/36.

Consequences of dismissal or unemployment
The worker will be permitted to look for another job and is entitled to equal treatment on the basis of national law concerning unemployment benefits in accordance with the Single Permit Directive 2011/98. In case the worker complies with the conditions of Directive 2009/50 on entry and residence of third-country nationals for the purposes of highly qualified employment he may, in accordance with Article 10(2) of that directive, apply for a Blue Card in his Member State of residence or in another Member State. Before the worker has acquired the long-term residence status in the second Member State, the first Member State will be obliged to take the third-country national back if entitlement to unemployment benefits ends and no new job is found.

7.Risk that Member States grant asylum more often

The Meijers Committee has no reason to expect that increased possibilities of free movement will encourage Member States to grant asylum more often, because i) the right to move to another Member State is conditioned on two years of lawful residence in the first Member State, ii) the right only accrues to international protection beneficiaries who find work in another Member State, and iii) the first Member State remains responsible for taking the person back if the conditions for residence in the second Member State are no longer fulfilled until long-term resident status in the second Member State is obtained.

NOTE
¹ See Bundesministerium des Innern, Migrationsbericht 2013, p. 100ff and reply of the German government of April 2015 (no. 4/132) to a written parliamentary question in the Bundestag.

About
The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Anti-discrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation. The Meijers Committee is funded by the Dutch Bar Association (NOvA), Foundation for Democracy and Media (Stichting Democratie en Media) the Dutch Refugee Council (VWN), Foundation for Migration Law Netherlands (Stichting Migratierecht Nederland), the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF.

Contact info: Louis Middelkoop Executive secretary post@commissie-meijers.nl +31(0)20 362 0505

Please visit www.commissie-meijers.nl for more information.

Privacy and Data Protection Implications of the Civil Use of Drones

IN DEPTH ANALYSIS FOR THE EP CIVIL LIBERTIES COMMITTEE (LIBE)

by Ottavio MARZOCCHI (Policy Department C: Citizens’ Rights and Constitutional Affairs European Parliament )

EXECUTIVE SUMMARY

Drones (also called RPAS, Remotely Piloted Aircraft Systems, or UAV, unmanned aerial vehicles) are aircraft without a human pilot on board, which are guided by a remote pilot.
Drones have been developed for military use but are now increasingly used for civil purposes. Currently drones are employed for critical infrastructure and civil protection, disaster management and search and rescue, environmental protection, law enforcement and surveillance, journalism, commercial activities and leisure, while it is foreseen that in the future they will also be employed for other missions, such as agriculture, energy, transport of goods and cargo – and even of people.

States plan to increase their use of drones, while industry, small and medium enterprises and private companies have a growing interest in the manufacturing, selling and use of drones to monitor their activities or provide goods and services to clients. Being currently available on the market at affordable prices, their use by private individuals has increased exponentially.

The current and prospective development of drones has a series of positive impacts, notably for employment, SMEs and industrial development, and has a potential to generate growth and jobs. Drones can carry out operations in emergency situations, where human intervention is either impossible or difficult (drones could help save lives in operations of humanitarian relief, search and rescue at sea, when nuclear accidents or natural disasters occur, etc).
As with any technology, there are also risks to be taken into serious account by stakeholders, regulators, institutions and citizens in order to prevent, minimize and counter the potential negative impacts of some applications of drone technology. This is especially the case in the absence of proper regulation or/and when drones are used in illegal, unsafe or irresponsible ways.

In terms of risks for privacy and data protection, drones normally carry video-cameras to allow pilots to fly them. These images can be easily recorded and stored, and are often uploaded onto the internet. The privacy of private life and property can be interfered with and violated when drones capture images of people in their houses or gardens. A series of other applications and payloads can also be installed on drones, allowing the gathering and processing of personal data and seriously interfering with and potentially violating citizens’ rights to privacy and data protection¹.

In terms of security and safety, drones pose a series of considerable and serious risks. As reported by the media, drones have been spotted over airports or close to them, disrupting or/and threatening civil aviation; have crashed on the ground; have been flown over critical infrastructure, embassies or tourist attractions; have injured people. The prospective increase in the number of drones flying at different heights (including in the space currently reserved for civil aviation), in different directions (drones normally change direction multiple times, on the basis of pilots’ orders) and areas, with different weights and speeds, over people and private properties, poses serious challenges. The technological environment to ensure the secure and safe integration of drones in the civil aviation system does not yet seem ripe, as communications can be easily lost or hijacked, the detect and avoid systems are not by default installed on drones and systems to block their access into no-fly zones (geo-fencing) are not in place. Responsibility and liability for drones’ use is not yet guaranteed, as identification of the owners or pilots is not required in most EU MS, making transparency or law enforcement action almost impossible.

Potentially, the positive applications of drones (e.g. for fire-fighting; or nuclear plan inspection) can be nullified by negative applications (e.g. private drones flying around and impeding quick fire-fighter intervention, as happened in Norway; or private drones flying over the nuclear power plant, or even crashing on it). These elements show that drones pose a series of challenges and concrete risks for safety, security and the fundamental rights of persons, which are to be addressed seriously.

The exponential development and spread of drones challenges policy makers to regulate them and their use by balancing the will to support drones’ positive potential for the economy while preventing, minimizing and countering the negative impacts and the risks illustrated above. A series of initiatives at international, European and national level are currently underway to respond to this challenge.

The European Commission has worked in recent years to promote RPAS integration into the European civil aviation airspace (“non-segregated air traffic management environments”). The next steps in the process will be the development of safety rules by EASA during 2015. Based on this, the Commission will issue a package containing a revision of the basic European Civil Aviation Safety Regulation (currently under impact assessment) possibly in 2015 to allow the integration of drones from 2016 onwards.

The Commission has identified priority areas where the EU could play a leading or coordinating role, notably by developing a regulatory framework to guarantee safety; fostering enabling technologies; security; protecting citizens’ fundamental rights (privacy and data protection); guaranteeing third party liability and insurance; supporting market development and emergence and promoting the European RPAS industry and its competitiveness. EASA and the Council, as well as MS regulations, seem to go broadly in the same direction.

This research finds that:

In order to ensure that the EU can regulate drones regardless of their weight, it is necessary to modify EC Regulation 216/2008 and notably its Annex 2, which currently limits the scope of EU action to RPAS weighting more than 150 kg. Once this has been done, the current regulations and laws adopted at national level will have to be modified on the basis of the future EU regulatory regime, which might be based on a new “proportionate to the risk” approach;

. Notwithstanding the fact that interferences to privacy and data protection can be particularly serious when drones are used to collect personal data for law enforcement purposes and surveillance activities, EU data protection law does not currently cover this area (except when such data is exchanged amongst Member States). Activities by private individuals are excluded from the application of the DP Directive due to the “household” exception, but it seems likely that the capturing and processing of personal data carried out by drones in public spaces could be subject to EU data protection law, following the ECJ jurisprudence on CCTV. In these areas, it is primarily for Member States to ensure that privacy and data protection guarantees apply; looking forward, the approval of the Data Protection Regulation and Directive will bring a positive contribution in terms of impact assessments, privacy by design and privacy by default, as these will become mandatory;

Citizens’ right to security and safety of citizens does not seem to be fully guaranteed across the EU and by all MS in relation to drones and their use, while enabling technologies are still in development; law enforcement action is virtually impossible as rules on identification of drones and of their operations, responsibility and liability are not yet in place everywhere;

The whole “drones’ chain” should be more closely examined in terms of current and future EU and/or MS regulation needed to minimize or counter risks for citizens and to their rights, from manufacturing and trade (production, selling, buying, internal and international trade, notice for buyers on risks and hazards and applicable rules or legislation for flying drones), to safety (airworthiness, pilot licences, operation authorisation, identification and monitoring of drones and of their flights, establishment of no-fly zones such as critical infrastructures, airports, cities and villages, gatherings, rules that should be followed when operating a drone, for instance visual line of sight, private properties, etc), privacy and data protection rules, as well as laws related to criminal behaviour, intellectual property, aviation, environmental law that are to be respected by drones, security (regulations and measures to ensure that law enforcement action against illegal and unsafe use of drones is possible, responsibility and liability for damage to persons or property as a result of an incident caused by an RPA).

The debate on the future regulatory regime for drones, which has been mainly carried out up to now between industry, stakeholders, technical regulators and working groups (be it at the national, European and international level), should involve more closely both citizens and legislators. Consultations on future options should be carried out, so to take into account citizens’ views and concerns, while legislators should be the ones to take decisions on regulation, given the risks posed by drones. This is the only way to ensure that “public acceptance” of, or “societal concerns” in relation to, drones are addressed and resolved, though the open and democratic debate and scrutiny.

In order to achieve these objectives at the EU level and ensure a more transparent and democratic debate on the future policy on drones, the EP could ask the Commission report in detail and in straightforward terms, for instance in its upcoming impact assessment, about which actions it plans to undertake in the “drones’ chain” to ensure that the objectives of safety, security, respect of fundamental rights, namely privacy and data protection, environment, responsibility and liability, law enforcement action, insurance, identification and transparency, technological development, can be achieved, with recommendations for MS and/or EU action, and possible options. A description of the regulatory approaches in MS should also be provided, so to allow a comparison and to identify best practices. It should also report about the past, present and future use of EU funds for drones development, and on how funds for civilian uses and military/defence uses of drones interact. A yearly reporting mechanism would also be useful, and could also address the causes and possible remedies to deal with drones’ incidents.

¹ For instance: high power zoom, facial recognition, behaviour profiling, movement detection, number plate recognition, thermal sensors, night vision, radar, see-through imaging, Wi-fi sensors, microphones and audio-recording systems, biometric sensors to process biometric data, GPS systems processing the location of the persons filmed, systems to read IP addresses and track RFID devices, systems to intercept electronic communications.

CONTINUE READING THE FULL REPORT HERE

COE Human Rights Commissioneer : Reinforcing democratic oversight of security services cannot be further delayed

Strasbourg, 5 June 2015 – “The current systems of oversight of national security services in Europe remain largely ineffective. Revelations over the last years about security operations which have violated human rights should have prompted reforms in this field, but progress has been disappointingly slow. European countries must now ensure more democratic and effective oversight of what their security services do and avoid future operations leading to new human rights violations,” said today Nils Muižnieks, Commissioner for Human Rights, while presenting a report on this topic.

The report intends to provide guidance to strengthen human rights protection in the field of security services. It sets forth a number of measures necessary for making national oversight systems more effective and the security services accountable and fully compliant with human rights standards. “Security service activities impact a variety of human rights, including the right to life, to personal liberty and security, and the prohibition of torture or inhuman, cruel and degrading treatment. They also impinge on the right to privacy and family life, as well as the rights to freedom of expression, association and assembly, and fair trial. It is therefore crucial that security services uphold the rule of law and human rights in undertaking their tasks.”

Council of Europe member states have taken diverse approaches to oversight, which include parliamentary committees, independent oversight bodies, institutions with broader jurisdictions such as ombudspersons, data commissioners and judicial bodies. However, none abides fully to internationally established norms. Drawing upon international and European standards and national practices, the paper sets out the most significant objectives and overriding principles that can enable more effective oversight of security services. “It is necessary to keep oversight democratic, primarily through the involvement of parliaments. It is also crucial to ensure prior authorisation of the most intrusive measures, including surveillance, and to establish a body able to issue legally binding decisions over complaints by individuals affected by security activities, as well as to access all intelligence-related information,” said the Commissioner.

“Security services exist to protect our democracies. Their work is fundamental to ensure that we all can live in security. This paper intends to show how their activities can be best sustained by policies which ensure their lawfulness and accountability. Ensuring that security agencies operate under independent scrutiny and judicial review does not reduce their effectiveness. On the contrary, governments would increase their credibility among the public and weaken support for anti-democratic causes if they show as much resolve in safeguarding human rights as in fighting terrorism.”

The executive summary and the Commissioner’s recommendations are also available in French and German. Translations into Turkish and Russian are under way.

To read more about the Commissioner’s work on counter-terrorism and human rights, please visit this page.

Press contact in the Commissioner’s Office:
Stefano Montanari, + 33 (0)6 61 14 70 37; stefano.montanari@coe.int
www.commissioner.coe.int; Twitter: @CommissionerHR; Facebook; youtube

The Commissioner for Human Rights is an independent, non-judicial institution within the Council of Europe, mandated to promote awareness of, and respect for, human rights in the 47 member states of the Organisation. Elected by the Parliamentary Assembly of the Council of Europe, the present Commissioner, Mr Nils Muižnieks, took up his function on 1 April 2012

THE FRENCH “WAR ON TERROR” IN THE POST-CHARLIE HEBDO ERA

ORIGINAL PUBLISHED ON EUCRIM EDITED BY THE MAX PLANCK INSTITUTE AND THE EUROPEAN CRIMINAL LAW ASSOCIATION’S FORUM (*)

by Vasiliki Chalkiadaki

I. Introduction

France’s history of terrorism is neither new nor exclusively Islamist-related. At the end of the 1970s, France experienced a wave of terrorist activity both from left-revolutionary groups, such as the Action Directe,1 and from nationalist-separatist groups, especially those active in Brittany, Corsica, and the Basque Country.2 By the early 1980s, however, France had become a target of Islamist terrorist groups and has remained so ever since, as the gunmen attack on the Paris headquarters of the satirical magazine Charlie Hebdo on 7 January 2015 demonstrated.3

The history of contemporary French counterterrorism legislation dates back to 1986, with the law on counterterrorism of 9 September 1986. Before the latter, France dealt with terrorist attacks by means of special laws on state security that had been enacted during the Algerian wars (1954–1962), which provided for an intensive limitation of individual rights and even for a special court to deal with the relevant offences (Cour de Surete de l’Etat, “Court of State Security”)4 that was abolished only in 1982. Therefore, until 1986, no specific counterterrorism legislation existed.

Before 1986, terrorist acts were characterized as “serious violent acts threatening the integrity and the security of the state” and treated accordingly.5

This paper presents the impact that the latest terrorist attack (hereafter: the Charlie attack) has had so far on France’s counterterrorism legislation (part III). After a brief historical overview of current legislative measures (part II), the following aspects are examined as being the effects of the attack:

the enactment of a series of provisions, mainly in the Code of Internal Security (Code de securite interieure, hereafter: Cod. Sec. Int.);
the exponentially increasing number of prosecutions on the basis of already existing substantive criminal law provisions (especially the glorification of terrorism and the preparation of terrorist acts);
the planning of new measures and the drafting of the relevant provisions regarding the financing of terrorism to reinforce the already existing framework on terrorist financing.

II. Historical overview Continue reading “THE FRENCH “WAR ON TERROR” IN THE POST-CHARLIE HEBDO ERA”

The US legal system on data protection in the field of law enforcement. Safeguards, rights and remedies for EU citizens

EXECUTIVE SUMMARY OF STUDY FOR THE EUROPEAN PARLIAMENT LIBE COMMITTEE PUBLISHED HERE

by Francesca BIGNAMI (*)

In US law, there are a number of different legal sources that govern data protection in the field of federal law enforcement. This study first considers the two most important sources of data protection law^the Fourth Amendment to the US Constitution and the Privacy Act of 1974. It then turns to the most significant methods of information collection that are available for ordinary criminal investigations and national security investigations and the data protection guarantees set down under the laws authorizing and regulating such information collection.

The Fourth Amendment prohibits “unreasonable searches and seizures” by the government. Reasonableness is established if the search or seizure is conducted pursuant to a valid warrant, that is, a judicial order based on a showing of probable cause and on a particular description of the property to be searched and the items to be seized. Reasonableness can also be established if one of the exceptions to the warrant requirements exists. In the data protection context, however, the application of the Fourth Amendment is relatively limited because of the third-party records doctrine which holds that individuals do not have an expectation of privacy in personal data that they voluntarily turn over to third parties like financial institutions and communications providers. With regard to EU citizens, the Supreme Court has held that foreign citizens resident abroad are not covered by the Fourth Amendment.

Among U.S. laws, the Privacy Act of 1974 is the closest analogue to a European data protection law in that it seeks to regulate comprehensively personal data processing, albeit only with respect to federal government departments and agencies. It regulates the collection, use, and disclosure of all types of personal information, by all types of federal agencies, including law enforcement agencies. At a general level, the Privacy Act contains most of the elements of the EU right to personal data protection. However, it only protects US citizens and permanent residents, not EU citizens.

Furthermore, there are a number of exemptions available specifically for law enforcement agencies. As a result, the benefits of the proposed legislation on judicial redress for EU citizens are unclear. The proposed legislation contemplates three types of law suits, two of which are designed to protect the right of access to and correction of personal data, and one of which enables individuals to obtain compensation for unlawful disclosures of personal data. Since law enforcement agencies commonly exempt their data bases from the access requirements of the Privacy Act, the right of action for intentional or willful disclosures that cause actual damage is the only one that would be available on a general basis.

In investigations involving ordinary crime, there are at least three different methods of personal data collection available to law enforcement officials: (1) use of private sources like commercial data brokers; (2) court and administrative subpoenas; (3) electronic surveillance and access to electronic communications based on a court order under the Electronic Communications Privacy Act. These information-gathering methods afford the same level of data protection for US and EU citizens.

With respect to EU data protection law, however, some of these methods contain relatively few data protection guarantees.

In the case of private sources of personal data, this is attributable to the absence of a comprehensive data protection scheme in the private sector and the vast quantities of personal information freely available to market actors and, consequently, also to law enforcement officials. With respect to the subpoena power and access to communications metadata and subscriber records (under the Stored Communications Act and the Pen Register Act), the lack of significant data protection guarantees is associated with the standard of “relevance” to any type of criminal investigation and the permissive application of that standard by the courts. The law and jurisprudence of “relevance,” in turn, is driven by the failure of US law to recognize a robust privacy interest in the personal data held by corporate entities and other third parties.

In investigations involving national security threats, which can involve both an intelligence and a law enforcement component, there are a number of additional means available to the government: (1) a special type of administrative subpoena known as a “national security letter”; (2) surveillance authorized by the Foreign Intelligence Surveillance Act (FISA); (3) any other form of intelligence gathering authorized by Executive Order 12,333 (and not covered by FISA). The information gathered through such methods can be shared with criminal prosecutors if relevant for law enforcement purposes.

Foreign intelligence gathering, both inside and outside the United States, follows a two-track scheme, one for US persons and another for non-US persons. With the exception of FISA electronic and physical surveillance orders, the data protection guarantees afforded to non-US persons are minimal. The stated intent of Presidential Policy Directive 28 is to provide for stronger personal data protection for non-US persons, but it is difficult to come to any conclusions at this point in time on what effect it will have.

More generally, even with respect to US persons, personal data protection under foreign intelligence law raises a couple of questions.

The first concerns the point in time when the right to privacy is burdened by government action. The US government has suggested that in the case of bulk collection of personal data, harm to the privacy interest only occurs after the personal data is used to search, or results from a search of, the information included in the data base.

This position stands in marked contrast with EU law, where it is well established that bulk collection, even before the personal data is accessed, is a serious interference with the right to personal data protection because of the number of people and the amount of personal data involved.

The second question concerns the conditions under which personal data can be shared between intelligence and law enforcement officials. In the realm of data processing by law enforcement and intelligence agencies, the European courts have emphasized that intrusive surveillance can only be conducted to combat serious threats that are carefully defined in law. They have also held that the information that results from such surveillance can only be used to combat those serious threats, whether to take national security measures or to prosecute the associated criminal offenses. In US law, by contrast, the law allows for intelligence to be transferred to the police and criminal prosecutors for any type of law enforcement purpose.

Continue reading here

(*) Prof. at George Washington University Law School, Washington, DC, USA

Summer School on The European Area of Criminal Justice (Brussels, 29 June – 3 July 2015)

NB: This Summer School is particularly designed for practitioners in the field of police cooperation and judicial cooperation in criminal matters, EU or national civil servants, as well as researchers and students interested in EU “Freedom, Security and Justice” policies.

Programme (See updated version here)

The 12th edition of the Summer School “The EU Area of Criminal Justice” will take place in Brussels from 29 June – 3 July 2015.

The objective of the Summer School is to provide participants with an extensive knowledge of EU criminal law. The classes are both theoretical and practical. They are conducted by academics, national experts or European officials who deal every day with the European criminal area.

The Summer School is specially designed for practitioners in the field of police and judicial cooperation in criminal matters, EU or national civil servants as well as researchers and students interested in the EU area of freedom, security and justice.

Concerning the programme: the Summer School takes place over a week, lectures are in English, participants receive a certificate of attendance, the final examination entitles participants to receive 3 ECTS and lawyers to gain 37 points from the OBFG (Ordre des Barreaux Francophones et Germanophone de Belgique).

The Summer School covers essentially 5 topics :

subject I (day 1): general introduction (historical evolution, institutional issues – Schengen included, judicial control – EU accession to ECHR included);
subject II (day 2): cooperation between national authorities in criminal cases, covering both police cooperation and judicial co-operation. The latter will address the evolution from classic judicial cooperation (Mutual Legal Assistance instruments) to mutual recognition instruments, with special attention to the European Arrest Warrant;
subject III (day 3): approximation of criminal law, in theory and practice. Thus, following a class on the approximation of substantive criminal law, the example of financial crimes will be addressed. Similarly, the theoretical course on approximation of procedural law will be complemented with the study of the Directive on the right of access to a lawyer;
subject IV (day 4): current and future actors of the European criminal area, particularly Eurojust, Europol and the EPPO.
subject V (day 5): data protection and external dimension of the EU area of criminal justice. The Summer School will end with a negotiation exercise.

Special events during the Summer School:

Mid-week conference : “Foreign fighters – a criminal law revolution?”

The conference will be chaired by Hans G. Nilsson (General Secretariat of the EU Council) and will count on speeches from illustrious practitioner and professors. For details, please download the programme on the right.

The Summer School is organised by the Institute for European Studies of the Free University of Brussels (IEE-ULB) in collaboration with the European Criminal Law Academic Network (ECLAN).