9. Internal security -police cooperation – Page 14 – European Area of Freedom Security & Justice

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

US CONGRESSIONAL RESEARCH SERVICE: Overview of Constitutional Challenges to NSA Collection Activities

FULL REPORT ACCESSIBLE HERE (May 21, 2015)

by Edward C. Liu Legislative Attorney, Andrew Nolan Legislative Attorney and Richard M. Thompson II Legislative Attorney

Summary

Beginning in summer 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each.

A handful of federal courts have addressed the Fourth Amendment issues raised by the NSA telephony metadata program. FISC opinions declassified in the wake of the public’s awareness of the NSA telephony metadata program have found that the program does not violate the Fourth Amendment. Similarly, in ACLU v. Clapper, the federal District Court for the Southern District of New York held that a constitutional challenge to the telephony metadata program was not likely to be successful on the merits. On appeal, the United States Court of Appeals for the Second Circuit refrained from reaching the merits of this Fourth Amendment challenge, but instead resolved the case on statutory grounds, holding that the metadata program exceeded statutory authorization under Section 215 of the PATRIOT Act. However, the panel did engage in a general discussion about the Fourth Amendment principles implicated by this program, including the effect of modern technology on American’s expectations of privacy. Both the district courts for the Southern District of California and the District of Idaho have found the bulk metadata program constitutional under existing Supreme Court precedent. In Klayman v. Obama, the federal District Court for the District of Columbia held that there is a significant likelihood that a challenge to the constitutionality of the NSA telephony metadata program would be successful.

Constitutional challenges to the NSA’s acquisition of Internet communications of overseas targets under FISA have arisen in a number of different contexts. First, such challenges have arisen in both the FISC and the Foreign Intelligence Surveillance Court of Review as part of those courts’ roles in approving the parameters of these collection activities. Secondly, constitutional challenges have been brought in traditional federal courts as civil actions by plaintiffs asserting an injury or in criminal proceedings by defendants who have been notified that evidence against them was obtained or derived from collection under Section 702. While the FISA courts have at times curbed the government’s ability to engage in surveillance activity to ensure compliance with the Fourth Amendment, the one federal court to address the issue has upheld the program against constitutional challenge.

CONTINUE READING 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

OPEN LETTER TO UK MPS: ENSURING DEMOCRATIC SCRUTINY OF UK SURVEILLANCE LAW CHANGES

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve PEERS

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today’s letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.

An open letter to all members of the House of Commons,

Dear Parliamentarian,

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterize the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

This letter has been prepared and signed by 35 academic researchers. We are comprised of people from both sides of this issue – those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.

Signatories

Andrew Murray (contact signatory)	Paul Bernal (contact signatory)
Professor of LawLondon School of Economics a.murray@lse.ac.uk	Lecturer in Information Technology, Intellectual Property and Media Law University of East AngliaPaul.Bernal@uea.ac.uk
Subhajit BasuAssociate Professor University of Leeds	Sally Broughton MicovaDeputy Director LSE Media Policy Project, Department of Media and Communications London School of Economics and Political Science
Abbe E.L. BrownSenior Lecturer School of Law University of Aberdeen	Ian BrownProfessor of Information Security and Privacy Oxford Internet Institute
Ray CorriganSenior Lecturer in Maths, Computing and Technology Open University	Angela DalyPostdoctoral Research Fellow Swinburne Institute for Social Research Swinburne University of Technology
Richard DanburyPostdoctoral Research Fellow Faculty of Law University of Cambridge	Catherine EastonLancaster University School of Law
Lilian EdwardsProfessor of E-Governance Strathclyde University	Andres GuadamuzSenior Lecturer in Intellectual Property Law University of Sussex
Edina HarbinjaLecturer in Law University of Hertfordshire	Julia HörnleProfessor in Internet Law Queen Mary University of London
Theodore KonstadinidesSenior Lecturer in Law University of Surrey	Douwe KorffProfessor of International Law London Metropolitan University
Mark LeiserPostgraduate Researcher Strathclyde University	Orla LynskeyAssistant Professor of Law London School of Economics
David MeadProfessor of UK Human Rights Law UEA Law School University of East Anglia	Robin MansellProfessor, Department of Media and Communication London School of Economics
Chris MarsdenProfessor of Law University of Sussex	Steve PeersProfessor of Law University of Essex
Gavin PhillipsonProfessor, Law School University of Durham	Julia PowelsResearcher Faculty of Law University of Cambridge
Andrew PuddephattExecutive Director Global Partners Digital	Judith RauhoferLecturer in IT Law University of Edinburgh
Chris ReedProfessor of Electronic Commerce Law Queen Mary University of London	Burkhard SchaferProfessor of Computational Legal Theory University of Edinburgh
Joseph SavirimuthuSenior Lecturer in Law University of Liverpool	Andrew ScottAssociate Professor of Law London School of Economics
Peter SommerVisiting Professor Cyber Security Centre, De Montfort University	Gavin SutterSenior Lecturer in Media Law Queen Mary University of London
Judith TownendDirector of the Centre for Law and Information Policy Institute of Advanced Legal Studies University of London	Asma VranakiPost-Doctoral Researcher in Cloud Computing Queen Mary University of London
Lorna WoodsProfessor of Law University of Essex

[1] http://bit.ly/1jNzlUz
[2] http://bit.ly/1yiXUZD
[3] http://bit.ly/1LfVFz3
[4] http://bit.ly/1S4RCdJ

Posted by Steve Peers at 03:18

Europe and “Whistleblowers” : still a bumpy road…

by Claire Perinaud (FREE Group trainee) The 9th and the 10th of April was organized in Paris by the University Paris X Nanterre la Défense in collaboration with the University Paris I Sorbonne a Conference on « whistleblowers and fundamental rights »[1] which echoed a rising debate on the figure of wistleblowers after the numerous revelations of scandals and corruption which occurred last years, with some of them directly linked to EU institutions. In the following lines I will try to sketch a) the general framework then b) the main issues raised during the Conference

A) The general framework

The term « whistle-blower » was created by Ralph Nader in 1970 in the context of the need to ensure the defense of citizens from lobbies. He defined « whistle blowing » as « an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is in corrupt, illegal, fraudulent or harmful activity »[2]. The interest of scholars and lawyers to the figure of whistle-blowers in the United States dates back to the adoption by the Congress in 1863 of the False claims act which is deemed to be the first legislation related to the right of alert[3].
The system which developed afterwards is notably based on the idea that whistle-blowing is a strong mechanism to fight corruption and has to be encouraged by means of financial incentives[4]. If this mechanism is of utmost importance in the United States, protection of whistle blowers is only slowly introduced in Europe[5].
With numerous scandals related to systemic violations of human rights, the subject is progressively dealt with in the European Union (EU) and in the Council of Europe. Nevertheless, in both organizations, the protection of whistleblowers remain at the stage of project or only recommendations to the states.

The Council of Europe… Continue reading “Europe and “Whistleblowers” : still a bumpy road…”

The EU’s Planned War on Smugglers

ORIGINAL PUBLISHED ON STATEWATCH

by Steve Peers (Twitter: @StevePeers)

The EU’s Foreign Affairs Council is meeting today (May 18) to discuss the possibility of a military operation in the Mediterranean to take actions against smuggling of migrants. Officially, at least, the purpose of the operation (as defined by EU leaders last month) is to destroy smugglers’ boats. The EU’s High Representative has stated that there will be ‘no boots on the ground’; and as she arrived at the Council meeting today, she referred to authorising an ‘EU operation at sea’.

However, it is clear from the documents discussed in the EU’s 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.

Details

The document defines the purpose of the EU operation: ‘to disrupt the business model of the smugglers, achieved by undertaking systematic efforts to identify, seize/capture and destroy vessels and assets before they are used by smugglers.’

There would be four phases: ‘(1) a deployment and assessment phase, (2) an operational/seizure (of smuggled vessels) phase; (3) an operational/disruption phase, (4) a mission withdrawal and completion phase. The EU states that authorisation by the UN is not required by the first phase. While ‘ideally’ there should be consent of ‘the government(s) concerned’, the EU document clearly contemplates going ahead without it.

Phase 1 – Deployment Continue reading “The EU’s Planned War on Smugglers”

EU Asylum Policy: In Search of Solidarity and Access to Protection

ORIGINAL PUBLISHED ON Migration Policy Centre, EUI

by Evangelia (Lilian) Tsourdi and Philippe De Bruycker,

1.State of play

Growing numbers of the forcibly displaced

Numerous crises and conflicts worldwide have forced more people from their homes, in the last years and months, than at any time in the last two decades1. The Syrian conflict has, for example, triggered the world’s largest humanitarian crisis since World War II, leading 3.9 million refugees to flee and leaving an estimated 12.2 million persons in need of humanitarian assistance inside Syria2. At the same time, significant numbers have had to flee other countries including Iraq, Afghanistan and Eritrea in order to seek asylum3.

The vast majority of those forcibly displaced outside their country of origin or residence remain in neighboring countries. The Syrian crisis is a telling example in this respect. Countries bordering Syria are coming close to saturation, particularly Lebanon, which hosts the largest per capita refugee population in the world with almost 1.2 million Syria refugees4. It has to be remembered that the Syrian refugee crisis comes just after the Iraqi refugee crisis of 2006-2009, which had displaced around two million Iraqi citizens towards the very same countries: Syria, Jordan, Lebanon, Turkey and Egypt5.

It is against this backdrop that the relative rise in asylum applications to the EU28 and the EU’s advancement in the creation of a common asylum system, as well as its role as a global protection actor should be assessed.

Is a Common European Asylum System in place?

The incremental development of a CEAS has been agreed since the Treaty of Amsterdam and the Tampere conclusions of 19997. The first stage of development revolved around efforts at legal harmonization on the basis of shared minimum standards. However, a common asylum procedure and a uniform status valid throughout the EU were seen as the end objective. It became apparent that legal harmonization alone would not be enough to bring about this result. Therefore, the development of other elements, and most notably, practical cooperation and enhanced solidarity came up.

It was gradually recognized that there were a number of advantages in joining forces in the asylum area. There was, of course, the rather ‘inward-focused’ motivation of establishing a common asylum system in order to limit secondary movements of protection seekers that had reached EU territory. But there were, also, more ‘outward looking goals’. Notably, these were: coordinating action in order to have a strategic impact externally; collaborating with third countries in the management of migration flows; and, less prominently, boosting the possibilities of legal access to the EU for international protection seekers.

Examined macroscopically, the CEAS is an advanced regional protection framework, both legislatively and policy-wise, that has the potential to influence the international refugee protection regime. Member States have sought to devise concrete mechanisms to allocate responsibility and they have elaborated detailed norms in areas that are not covered by the 1951 Refugee Convention, such as asylum procedures. They possess an institution, the Court of Justice of the EU, which is tasked with authoritatively interpreting the common norms, in an area where there is no ‘international refugee Court’. They have managed to move from ad-hoc support and exchanges of good practice to the institutionalization of practical cooperation efforts, by creating an EU agency. Finally, they have begun to coordinate their actions externally in an effort to manage, as much as possible, migration flows and to build protection capacity in third countries.

Nevertheless, the EU’s asylum system is riddled with problems that hold back its development. First of all, the responsibility-allocation mechanism that has been devised fails to share responsibility equitably between the Member States; it also largely disregards the realities faced by protection seekers and their preferences. More broadly, no objective discussion of what is a fair share of responsibility has ever taken place. This creates disincentives: on the one hand, for Member States to respect the obligations they have undertaken legislatively and, on the other, for protection seekers to abide by the rules, which do not take into account their links to specific Member States. Beyond the legislative and policy framework, the differentiated level of economic development between Member States, the discrepancies in their social assistance systems and the varying levels of investment in their asylum processing and reception systems, have led to widely diverging recognition rates and reception conditions. This has undercut the objective of curbing secondary movements between Member States; on the contrary it has fuelled them.

Finally, the EU’s external asylum dimension remains underdeveloped and is disproportionately focused on capacity building, while offering meagre opportunities for legal entry to protection seekers. On the contrary, the various measures the EU has taken as part of its external border control or visa policies have stifled access to protection and have led asylum seekers to risk their lives in order to reach EU territory. The impact of these policy choices is witnessed most vividly in the loss of life in the waters of the Mediterranean. Mediterranean crossings are not new; however, there an ever-increasing number of deaths in conjunction with a record number of migrant crossings8.

Why is reform still necessary?

Continue reading “EU Asylum Policy: In Search of Solidarity and Access to Protection”

THE COMMISSION’S NEW EU MIGRATION STRATEGY: WAITING FOR THE GREAT LEAP FORWARD

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve PEERS

Today this Commission releases its EU immigration strategy. The final text is not available yet, but here are my thoughts on the earlier version, leaked on Monday. I will update them if the final strategy differs significantly from the leaked draft.

Content

The migration strategy is divided into three parts. First of all, it sets out ‘immediate action’ to address the migrant death crisis. Secondly, it describes an agenda for immigration management in four areas: irregular immigration, border management, asylum and legal migration. Finally, it briefly sets out some long-term objectives.

Immediate action

The ‘immediate action’ section largely elaborates upon the strategy already defined by EU leaders in response to the deaths in the Mediterranean. As I discussed already, this is a modest response to the crisis, focussed mainly upon enlarging EU interception operations in the Mediterranean and destroying smugglers’ boats.

However, the Commission paper suggests more ambition in two areas. First, it wants to go further on the ‘relocation’ of asylum-seekers between Member States. This would mean that frontline states like Italy and Malta do not have to deal with so many asylum-seekers, which would normally be their responsibility under the EU’s Dublin rules on this issue. So on this issue, the Commission will propose by the end of May ‘emergency response’ legislation on the basis of Article 78(3) of the TFEU, which will allocate asylum-seekers coming as part of a mass influx between Member States. These laws will be subject to a qualified majority vote in the Council, but the European Parliament (EP) will only be consulted. The Commission will then follow that up with a proposal by the end of 2015 for a permanent system of relocation, on the basis of the ‘ordinary legislative procedure’, ie the usual powers of the EP. I have already discussed separately the question of whether they would apply to the UK.

Secondly, the Commission wants to go further on resettlement, ie the entry of recognised refugees now in third States into the EU. On this issue, the Commission will make a Recommendation on resettlement, to be followed by a binding proposal for legislation if this proves insufficient. Extra EU funds will be made available to assist resettlement.

Irregular immigration

First of all, the Commission wants to address root causes of irregular migration, by focussing the money the EU already spends on these issues. There is no clear commitment to more spending. Next, the Commission wants to address smuggling of migrants, with an ‘Action Plan’ to be produced by the end of May. The Commission doesn’t mention this, but a review of the current EU legislation on smuggling of migrants is now underway. Also, the Commission wants to take further action to enforce the EU’s Directive on employment of irregular migrants (on the implementation of this Directive, see discussion here).

Also, the Commission wants to address the issue of return, by prioritising countries of origin for readmission treaties with the EU, providing guidelines on the application of the EU Return Directive (see here on implementation of that Directive), and giving the EU Border Agency, Frontex, the power to initiate expulsion missions. The Commission will propose legislation on the latter issue on the basis of an evaluation to be completed by the end of the year.

Border management Continue reading “THE COMMISSION’S NEW EU MIGRATION STRATEGY: WAITING FOR THE GREAT LEAP FORWARD”