Counter-terrorism and the inflation of EU databases

Original published on Statewatch (*) on May 2017

By Heiner Busch (@Busch_Heiner) and Matthias Monroy (@matthimon)  (Translation from DE by Viktoria Langer)

The topic of counter-terrorism in Europe remains closely linked to the development and expansion of police (and secret service) databases. This was the case in the 1970s, after 11 September 2001 and has also been the case since 2014, when the EU Member States started working on their action plans against ‘foreign terrorist fighters’.

The first effect of this debate has been a quantitative one: the amount of data in the relevant databases has increased explosively since 2015. This can be seen by looking in particular at available data on the Europol databases, like ‘Focal Points’ (formerly: Analytical Work Files) of the Europol analysis system. Since 2015 they have become one of the central instruments of the European Counter Terrorism Centre (ECTC) which was established in January 2016. ‘Hydra’, the ‘Focal Point’ concerning Islamist terrorism was installed shortly after 9/11. In December 2003 9,888 individuals had been registered, a figure that seemed quite high at the time – but not compared with today’s figures. [1] In September 2016 ‘Hydra’ contained 686,000 data sets (2015: 620,000) of which 67,760 were about individuals (2015: 64,000) and 11,600 about organisations (2015: 11,000).

In April 2014 an additional ‘Focal Point’, named ‘Travellers’, was introduced, which is exclusively dealing with “foreign terrorist fighters” (FTF). One year later ‘Travellers’ included 3,600 individuals, including contact details and accompanying persons. In April 2016 the total number increased by a factor of six. Of the 21,700 individuals registered at the time, 5,353 were “verified” FTFs. In September 2016, of 33,911 registered individuals, 5,877 had been verified as FTFs.

Since 2010 Europol and the USA have operated the Terrorist Finance Tracking Programme (TFTP), which evaluates transfers made via the Belgian financial service provider SWIFT. Until mid-April 2016 more than 22,000 intelligence leads had been arisen out of that programme, of which 15,572 since the start of 2015. 5,416 (25%) were related to FTFs.

In contrast to Europol’s analytical system, the Europol Information System (EIS, the registration system of the police agency) can be fed and queried directly from the police headquarters and other authorities of EU Member States. Here, more than 384,804 ‘objects’ (106,493 individuals) were registered at the start of October 2016, 50% more than the year before. The increase is partly due to the growing number of parties participating in the EIS. In 2015 13 Member States were connected; in 2016 19 Member States. Some of the EU States, like the UK, also let their national secret services participate in the system. 16 Member States currently use automatic data uploaders for input. The number of third parties involved has also increased (in 2015 there were four, in 2016 there were eight). Interpol, the FBI and the US Department of Homeland Security are some of them.

Europol has reported further growth in the number of “objects” linked to terrorism in the EIS. According to the Slovak Presidency of the Council of the EU’s schedule for the improvement of information exchange and information management, in the third quarter of 2016 alone these grew another 20% to 13,645. [2] The EIS includes 7,166 data sets about individuals linked to terrorism, of which 6,506 are marked as FTFs or their supporters, or are assumed to be so. For May 2016 the CTC stated a figure of 4,129. [3] The increase in terrorism linked data can also be seen in the Schengen Information System (SIS) – in the alerts for “discreet checks or specific checks” following Article 36 of the SIS Decision. According to this, suspect persons are not supposed to be arrested. However, information about accompanying persons, vehicles etc. are recorded to provide insight into movements and to keep tabs on the contacts of the observed person. At the end of September 2016 the number of such checks by the police authorities (following Article 36(2)) was 78,015 (2015: 61,575, 2014: 44,669). The number of alerts of the national secret services based on Article 36(3) was 9,516 (2015: 7,945, 2014: 1,859). “Hits” on such alerts and additional information are supposed to be sent directly to the alerting authorities and not as usual to national SIRENE offices (which deal with the exchange of supplementary information regarding alerts in the SIS). This option was only introduced in February 2015.

The Schengen states used the instrument for discreet surveillance or specific checks very differently. On 1 December 2015 44.34% of all Article 36 alerts came from authorities in France, 14.6% from the UK, 12.01% from Spain, 10.09% from Italy and 4.63% from Germany. [4] How many of these alerts actually had a link to terrorism remains unclear; a common definition has not yet been found. However, the Council Working Party on Schengen Matters agreed on the introduction of a new reference (“activity linked to terrorism”) for security agencies’ alerts. According to Federal Ministry for the Interior, German alerts are marked with this reference when concrete evidence for the preparation of a serious act of violent subversion (§§129a, 129b Penal Code) can be presented. [5]

‘Unnoticed in the Schengen area’ Continue reading

Worth Reading: Justice against sponsors of terrorism (JASTA and its international impact)

European Parliament Research Service (EPRS)  Briefing published on October 2016

SUMMARY

On 27 September 2016, the United States Congress overrode the presidential veto to pass the Justice Against Sponsors of Terrorism Act (JASTA), the culmination of lengthy efforts to facilitate lawsuits by victims of terrorism against foreign states and officials supporting terrorism. Until JASTA, under the ‘terrorism exception’ in the US Foreign Sovereign Immunities Act, sovereign immunity could only be denied to foreign states officially designated by the USA as sponsors of terrorism at the time or as a result of the terrorist act. JASTA extends the scope of the terrorism exception to the jurisdictional immunity of foreign states so as to allow US courts to exercise jurisdiction over civil claims regarding injuries, death or damages that occur inside the USA as result of a tort, including an act of terrorism committed anywhere by a foreign state or official.

The bill has generated significant debate within and outside the USA. State or sovereign immunity is a recognised principle of customary international law and, for that reason, JASTA has been denounced as potentially violating international law and foreign states’ sovereignty; some countries have already announced reciprocal measures against the USA. The terrorism exception to state immunity was already a controversial concept, with only the USA and Canada having introduced legislation on the matter.

In this briefing:
What is JASTA?
The law on state immunity and the terrorism exception
Debate in the United States
Reactions in third countries
Considerations for the European Union
The European Union’s approach to victims’ rights
Main references

What is JASTA?

The Justice Against Sponsors of Terrorism Act (JASTA) represents an attempt by the US Congress to reduce the number of obstacles faced by victims of terrorism when bringing lawsuits in the USA against foreign states and officials supporting terrorism. The bill amends the federal judicial code (USC) to expand the scope of the terrorism exception (Title 28 USC, section 1605A) to the jurisdictional immunity of a foreign state. It will give US courts jurisdiction over civil claims regarding injuries, death, or damages that occur inside the United States as a result of a tort, including an act of terrorism, committed anywhere by a foreign state or official. It also amends the federal criminal code to permit civil claims (Title 18 USC, section 2333) sought by individuals against a foreign state or official for injuries, death or damages from an act of international terrorism (unless the foreign state is immune under the Foreign Sovereign Immunities Act, as amended by JASTA). Additionally, the bill authorises federal courts to exercise personal jurisdiction over, and impose liability on, a person who commits, or aids, abets, or conspires to commit, an act of international terrorism against a US national (thus expanding the liability of foreign government officials in civil actions for terrorist acts). However, the foreign state will not be subject to the jurisdiction of US courts if the tortious act in question constitutes ‘mere negligence’. JASTA contains a stay of actions clause that can apply if the USA is engaged in good faith discussions with the foreign state or any parties as to the resolution of the claims. A stay can be granted for 180 days, and is renewable. JASTA will apply to any civil action ‘arising out of an injury to a person, property, or business, on or after September 11, 2001’.

The JASTA bill was approved by the US Senate in May 2016 (S. 2040) and by the House of Representatives in September 2016, but was vetoed by President Obama. The bill passed after Congress overrode the presidential veto on 27 September 2016. There are however indications that some changes to the law are already being considered by lawmakers. Several countries, including some EU Member States have expressed concern about the bill. The existing US terrorism exception to state immunity is already considered to be contrary to customary international law and is an isolated practice among other states.

The law on state immunity and the terrorism exception Continue reading

Worth reading : the final report by the EU High Level Expert Group on Information Systems and Interoperability (HLEG),

NB: The full version (PDF)  of the Report is accessible HERE

On May 8th the (EU) High Level Expert Group on Information Systems and Interoperability (HLEG) which was set up in June 2016 following the Commission Communication on “Stronger and Smarter Information Systems for Borders and Security ” has published its long awaited 56 long pages Report on Information Systems and Interoperability.

Members of the HLEG were the EU Members States (+ Norway, Switzerland and Liechtenstein), the EU Agencies (Fundamental Rights Agency, FRONTEX, European Asylum Support Office, Europol and the EU-LISA “Large Information Support Agency”) as well as the representatives of the Commission and the European Data Protection Supervisor (EDPS) and the Anti-Terrorism Coordinator (an High Council General Secretariat Official designated by the European Council).

Three Statements, respectively of the EU Fundamental Rights Agency, of the European Data Protection Supervisor and of the EU Counter-Terrorism Coordinator (CTC),  are attached. The first two can be considered as a sort of partially dissenting Opinions while the CTC  statement is quite obviously in full support of the recommendations set out by the report as it embodies for the first time at EU level the “Availability Principle” which was set up already in 2004 by the European Council. According to that principle if a Member State (or the EU) has a security related information which can be useful to another Member State it has to make it available to the authority of another Member State. It looks as a common sense principle which goes hand in hand with the principle of sincere cooperation between EU Member States and between them and the EU Institutions.

The little detail is that when information is collected for security purposes national and European legislation set very strict criteria to avoid the possible abuses by public EU and National Law enforcement authorities. This is the core of Data Protection legislation and of the art. 6, 7 and 8 of the EU Charter of Fundamental Rights which prevent the EU and its Member States from becoming a sort of Big Brother “State of surveillance”. Moreover, at least until now these principles have guided the post-Lisbon European Court of Justice jurisprudence in this domain and it is quite appalling that no reference is made in this report to the Luxembourg Court Rulings notably dealing with “profiling” and “data retention”(“Digital Rights”, “Schrems”, “TELE 2-Watson”…).

Needless to say to implement all the HLWG recommendations several legislative measures will be needed as well as the definition of a legally EU Security Strategy which should be adopted under the responsibility of the EU co-legislators. Without a strong legally founded EU security strategy not only the European Parliament will continue to be out of the game but also the control of the Court of Justice on the necessity and  proportionality of the existing and planned EU legislative measures will be weakened.  Overall this HLWG report is mainly focused on security related objectives and the references to fundamental rights and data protection are given more as “excusatio non petita” than as a clearly explained reasoning (see the Fundamental Rights Agency Statement). On the Content of the  perceived “threats” to be countered with this new approach it has to be seen if some of them (such as the mixing irregular migration with terrorism)  are not imaginary and, by the countrary, real ones are not taken in account.

At least this report is now public. It will be naive to consider it as purely “technical” : it is highly political and will justify several EU legislative measures. It will be worthless for the European Parliament to wake up when the formal legislative proposals will be submitted. If it has an alternative vision it has to show it NOW and not waiting when the Report will be quite likely “endorsed” by the Council and the European Council.

Emilio De Capitani

TEXT OF THE REPORT (NB  Figures have not been currently imported, sorry.)

——- Continue reading

Immigration detention and the rule of law: the ECJ’s first ruling on detaining asylum-seekers in the Dublin system

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (May 5,2017)

by Tommaso Poli (LL.M. candidate in Human Rights and Humanitarian Law at the University of Essex, School of Law).

One of the most controversial issues in immigration law is the detention of asylum-seekers. This issue was not initially addressed by the European Common Asylum System (CEAS), but is now addressed in some of the second-phase CEAS measures (the CEAS consists of the Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, the Dublin Regulation and the EURODAC Regulation).

In particular, the second-phase CEAS measures contain detailed rules on detaining asylum-seekers in two cases:  a) general rules in the Reception Conditions Directive, which were the subject of a first ECJ ruling in 2016 (discussed here) and a recent opinion of an Advocate-General; and b) more specific rules in the Dublin III Regulation, applying to asylum-seekers whose application is considered to be the responsibility of another Member State under those rules. Recently, the ECJ ruled for the first time on the interpretation of the latter provisions, in its judgment in the Al Chodor case.

As we will see, the Court took a strong view of the need for the rule of law to apply in detention cases. Moreover, its ruling is potentially relevant not just to Dublin cases, but also detention of asylum-seekers and irregular migrants in other contexts too.

The rules on detaining asylum-seekers in the context of the Dublin process are set out in Article 28 of the Dublin III Regulation. First of all, Article 28(1) states that asylum seekers can’t be detained purely because they are subject to the Dublin process. Then Article 28(2) sets out the sole ground for detention: when there is a ‘significant risk of absconding’. If that is the case ‘Member States may detain the person concerned in order to secure transfer procedures in accordance with’ the Dublin rules, ‘on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively’.

Next, Article 28(3) sets out detailed rules on time limits for ‘Dublin detention’; these are the subject of the pending Khir Amayry case. Finally, Article 28(4) states that the general rules on guarantees relating to procedural rights and detention conditions set out in the Reception Conditions Directive apply to asylum-seekers detained under the Dublin rules.

Al Chodor concerned the interpretation of the grounds for detention under Article 28(2): what is a ‘serious risk of absconding’?  The Dublin III Regulation offers some limited clarity, defining ‘risk of absconding’ as ‘the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond.’ (Article 2(n) of the Regulation).

Facts

The case relates to an Iraqi man and his two minor children who were traveling from Hungary in the Czech Republic, without any documentation to establish their identity, with the aim of joining family members in Germany. After stopping the Al Chodors, the Czech Foreigners Police Section (FPS) consulted the Eurodac database and found that they had made an asylum application in Hungary. As a consequence, the Al Chodors were subjected to the transfer procedure according to Article 18(1)(b) of the Dublin III Regulation. In addition, the FPS took the view that there was a ‘serious risk of absconding’, given that the Al Chodors had neither a residence permit nor accommodation in the Czech Republic, while they were waiting for their transfer to Hungary.

So, they placed the Al Chodors in detention for 30 days pending their transfer pursuant to Paragraph 129(1) of the national law on the residence of foreign nationals, read in conjunction with Article 28(2) of the Dublin III Regulation. The Al Chodors brought an action against the decision ordering their detention to the regional Court, which annulled that decision, finding that Czech legislation does not lay down objective criteria for the assessment of the risk of absconding within the meaning of Article 2(n) of the Dublin III Regulation. That Court accordingly ruled that the decision was unlawful. Following the annulment of the decision of the FPS, the Al Chodors were released from custody.

The FPS brought an appeal on a point of law before the Supreme Administrative Court against the decision of the Regional Court. According to the FPS, the inapplicability of Article 28(2) of the Dublin III Regulation cannot be justified by the mere absence in Czech legislation of objective criteria defining the risk of absconding. That provision subjects the assessment of the risk of absconding to three conditions, namely an individual assessment taking account of the circumstances of the case, the proportionality of the detention, and the impossibility of employing a less coercive measure. The FPS has submitted that it satisfied those conditions.

The Supreme Administrative Court was uncertain whether the recognition by its settled case-law of objective criteria on the basis of which the detention of persons pursuant to Paragraph 129 of the Law on the residence of foreign nationals may be carried out can meet the requirement of a definition ‘by law’ within the meaning of Article 2(n) of the Dublin III Regulation, in so far as that case-law confirms a consistent administrative practice of the FPS which is characterised by the absence of arbitrary elements, and by predictability and an individual assessment in each case. So the Court decided to refer to the European Court of Justice for a preliminary ruling asking whether Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring Member States to establish, in a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond, and whether the absence of those criteria in a national law leads to the inapplicability of Article 28(2) of that regulation.

Judgment

The Court of Justice first of all ruled that Article 2(n) of the Dublin III Regulation explicitly requires that objective criteria defining the existence of a risk of absconding be defined by the national law of each Member State (paragraph 27-28). Then, determining whether the word ‘law’ must be understood as including settled case-law, the Court reaffirmed that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, paragraph 27).

So with regard to the general scheme of the rules of which Article 2(n) of Dublin III Regulation forms part, the Court, referring to recital 9 of that regulation, states that the regulation is intended to make necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection of fundamental rights afforded to applicants under that system. This high level of protection is also clear from Articles 28 and 2(n) of that regulation, read in conjunction. As regards the objective pursued by Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) thereof, the Court recalls that, by authorizing the detention of an applicant in order to secure transfer procedures pursuant to that regulation where there is a significant risk of absconding, those provisions provide for a limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter.

In that regard, it is clear from Article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality. Furthermore, it is worth noting that in this ruling the European Court of Justice explicitly aligns its interpretation to the European Court of Human Rights (ECtHR), reaffirming that any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a national law authorizing the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid risk of arbitrariness (judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, paragraph 125).

The Court then concluded by stating that taking account of the purpose of the provisions concerned, and in the light of the high level of protection which follows from their context, only a provision of general application could meet the requirement of clarity, predictability, accessibility and, in particular, protection against arbitrariness. It follows that Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In the absence of such criteria, the detention was unlawful.

Comments

First of all, the Court’s ruling is likely relevant to the interpretation of other EU measures concerning immigration detention. In the Returns Directive, which inter alia concerns the detention of irregular migrants (as distinct from asylum seekers), the ‘risk of absconding’ forms part of the ground for detention (as well as one of the grounds for refusing to allow the irregular migrant a period for voluntary departure); and it is defined exactly the same way as in the Dublin III Regulation. As for asylum seekers who are detained on grounds other than the Dublin process, a ‘risk of absconding’ is an element of one of the grounds for detention under the Reception Conditions Directive, but is not further defined. But a recent Advocate-General’s opinion notes (at para 73) that this clause aims to prevent ‘arbitrary’ detention, which was a key feature of the reasoning in the Al Chodor judgment. This surely points to a consistent interpretation of the two asylum laws. It follows that arguably the Court’s judgment should be relevant not just to Dublin cases but to any immigration detention of non-EU citizens in any Member State bound by the relevant EU legislation.

Secondly, this ruling has reiterated the principle by which although regulations generally have immediate effect in national legal systems without it being necessary for the national authorities to adopt measures of application, some of those provisions may necessitate, for their implementation, the adoption of measures of applicability by the Member States (judgment of 14 April 2011, Vlaamse Dierenartsenvereniging and Janssens, paragraphs 47 and 48).

Most significantly, the Court has reaffirmed the primacy of Human Rights law in EU asylum law implementation, highlighting that the development of the EU asylum law itself depends on its compliance with Human Rights law. In particular, the ECJ’s ruling in this case first of all reflects the ECtHR’s interpretation of the ‘arbitrariness’ of detention, which extends beyond the lack of conformity with national law. Notably, it states that a deprivation of liberty that is lawful under domestic law can still be arbitrary and thus contrary to the general principles, stated explicitly or implied, in the Convention (judgment of the European Court of Human Rights of 9 July 2009, Mooren v. Germany, paragraphs 73-77).

The Court’s ruling also reflects UN human rights norms. The Human Rights Committee’s General Comment No. 31 related to the nature of the general legal obligation imposed on State parties to the UN Covenant on Civil and Political Rights, which all EU Member States are State parties to, which reads that ‘in no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right’ (paragraph 4). Furthermore, the Human Rights Committee’s General Comment No. 35 points out that “arbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality” (paragraph 12, see also HRC, Van Alphen v. Netherlands, paragraph 5.8).

Finally, the Court’s ruling has confirmed the constitutional value of the Charter of Fundamental Rights of the European Union, which assumes a critical value in this historical period, since, as with any constitutional instrument, the more society as a whole is going through difficult times (such as the perceived ‘migration crisis’ in Europe), the more important it is to reaffirm its principles and values.

Likewise Article 52 of the EU Charter states that in no case may restrictions be applied or invoked in a manner that would impair the essence of a Charter right; in the context of detention, a fortiori it can be also affirmed that essential elements of guarantee for that right, as the requirement of lawfulness and non-arbitrariness for the right of liberty, cannot be disregarded in any circumstance. The Al Chodor ruling puts meat on the bones of that fundamental principle.

Authorization of deprivation of liberty by judicial authorities in the recast Reception conditions Directive proposal (ICJ OBSERVATIONS)

 

April 2017

The Commision proposal of the Reception Conditions Directive (recast) COM(2016) 465 final has been published by the European Commission on 13.7.2016. On 23 February 2017, the amendments[1] have been tabled in the European Parliament on the draft report by Sophia in ‘t Veld from 18 January 2017, the Rapporteur of the recast Directive.

The ICJ supports the amendments especially when it comes to its proposals on detention. In particular in the sense that detention or other restrictions of movement that may cumulatively amount to deprivation of liberty should always and only be ordered by judicial authorities (the proposed amendments 10, 30-33, 93-95, and 243-246 regarding Recital 20, Article 8.1, 9.2 and 9.3 of the proposal in particular).

The right to liberty and security of the person is protected under international human rights law (Article 9 ICCPR, Art 5 ECHR), and means that, as a general rule, asylum seekers should not be detained, except where detention can be justified as a necessary and proportionate measure for a legitimate purpose in the specific circumstances of the case. Asylum seekers may have already suffered imprisonment and torture in the country from which they have fled and therefore, the consequences of detention may be particularly serious, causing severe emotional and psychological stress and may amount to inhuman and degrading treatment.

Under international human rights law, it is established that asylum seekers should only be detained, as a last resort, in exceptional cases and where non-custodial measures have been proven on individual grounds not to achieve the stated, lawful and legitimate purpose. Detention must not be imposed arbitrarily, it must be lawful, necessary, and applied without discrimination. Judicial authorization, as well as judicial review, of detention provides an important safeguard against arbitrariness.

The Parliamentary Assembly of the Council of Europe has clearly stated in its Resolution 1707 (2010) on Detention of asylum seekers and irregular migrants in Europe, para 9.1.3, that “detention shall be carried out by a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review.

It has been also established in international law that there is a right to judicial review of any form of detention, and that such review must always be of a judicial nature[2] UNHCR guidelines also require both automatic review of detention and regular automatic periodic reviews thereafter, and a right to challenge detention.[3]

 Taking account of the complexity of the assessment of whether a deprivation of liberty is justifiable as necessary and proportionate in the individual case of an asylum seeker and of the seriousness of the impact on human rights of deprivation of liberty, the ICJ considers that authorization by a judicial authority would always be preferential in cases of detention or other serious restrictions of movement.

 NOTES

[1] See Amendments 1-51:; Amendments 52-295:; Amendments 296-543:

[2] see European Court of Human Rights in Öcalan v. Turkey, para 70; Human Rights Committee in C. v. Australia, para 8.2-8.3; HRC General Comment No. 35, Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35 (2014), para 18).

[3] Guideline 7: “(iii) to be brought promptly before a judicial or other independent authority to have the detention decision reviewed. This review should ideally be automatic, and take place in the first instance within 24–48 hours of the initial decision to hold the asylum-seeker. The reviewing body must be independent of the initial detaining authority, and possess the power to order release or to vary any conditions of release. (iv) following the initial review of detention, regular periodic reviews of the necessity for the continuation of detention before a court or an independent body must be in place, which the asylum-seeker and his/her representative would have the right to attend. Good practice indicates that following an initial judicial confirmation of the right to detain, review would take place every seven days until the one month mark and thereafter every month until the maximum period set by law is reached. (v) irrespective of the reviews in (iii) and (iv), either personally or through a representative, the right to challenge the lawfulness of detention before a court of law at any time needs to be respected. The burden of proof to establish the lawfulness of the detention rests on the authorities in question. As highlighted in Guideline 4, the authorities need to establish that there is a legal basis for the detention in question, that the detention is justified according to the principles of necessity, reasonableness and proportionality, and that other, less intrusive means of achieving the same objectives have been considered in the individual case.”

Legal Frameworks for Hacking by Law Enforcement: Identification, Evaluation and Comparison of Practices

EXECUTIVE SUMMARY OF A STUDY FOR THE EP LIBE COMMITEE.

FULL TEXT ACCESSIBLE  HERE  

by Mirja  GUTHEIL, Quentin  LIGER, Aurélie  HEETMAN, James  EAGER, Max  CRAWFORD  (Optimity  Advisors)

Hacking by law enforcement is a relatively new phenomenon within the framework of the longstanding public policy problem of balancing security and privacy. On the one hand, law enforcement agencies assert that the use of hacking techniques brings security, stating that it represents a part of the solution to the law enforcement challenge of encryption and ‘Going Dark’ without systematically weakening encryption through the introduction of ‘backdoors’ or similar techniques. On the other hand, civil society actors argue that hacking is extremely invasive and significantly restricts the fundamental right to privacy. Furthermore, the use of hacking practices pits security against cybersecurity, as the exploitation of cybersecurity vulnerabilities to provide law enforcement with access to certain data can have significant implications  for  the security of the internet.

Against this backdrop, the present study provides the LIBE Committee with relevant, actionable insight into the legal frameworks and practices for hacking by law enforcement. Firstly, the study examines the international and EU-level debates on the topic of hacking by law enforcement (Chapter 2), before analysing the possible legal bases for EU intervention in the field (Chapter 3). These chapters set the scene for the primary focus of the study: the comparative analysis of legal frameworks and practices for hacking by law enforcement across six selected Member States (France, Germany, Italy, the Netherlands, Poland and the UK), with further illustrative examples from three non-EU countries (Australia, Israel and the US) (Chapter 4). Based on these analyses, the study concludes (Chapter 5) and presents concrete recommendations and policy proposals for  EU  action  in  the field (Chapter 6).

The international and EU-level debates on the use of hacking techniques by law enforcement primarily evolve from the law enforcement challenge posed by encryption – i.e. the  ‘Going  Dark’  issue.

Going Dark is a term used to describe [the] decreasing ability [of law enforcement agencies] to lawfully access and examine evidence at rest on devices and evidence in motion across   communications   networks.1

According to the International Association of Chiefs of Police (IACP), law enforcement agencies are not able to investigate illegal activity and prosecute criminals without this evidence. Encryption technologies are cited as one of the major barriers to this access. Although recent political statements from several countries (including France, Germany, the UK and the US) seemingly call for ‘backdoors’ to encryption technologies, support for strong encryption at international and EU fora remains strong. As such, law enforcement agencies across the world started to use hacking techniques to bypass encryption. Although the term ‘hacking’ is not used by law enforcement agencies, these practices essentially mirror the techniques used by hackers (i.e. exploiting any possible vulnerabilities – including technical, system  and/or human  vulnerabilities  – within  an  information  technology  (IT) system).

Law enforcement representatives, such as the IACP and Europol, report that access to encrypted and other data through such hacking techniques brings significant investigative benefits. However, it is not the only possible law enforcement solution to the ‘Going Dark’ issue. Outside of the scope of this study, the other options include: requiring users to provide their password or decrypt their data; requiring technology vendors and service providers to bypass   the   security   of   their   own   products   and   services;   and   the    systematic   weakening   of encryption through the mandated introduction of ‘backdoors’ and/or weakened standards for encryption.

With the benefits of hacking established, a 2016 Joint Statement published by the European Union Agency for Network and Information Security (ENISA) and Europol2 noted that the use of  hacking  techniques also brings  several   key  risks.

The primary risk relates to the fundamental right to privacy and freedom of expression and information, as enshrined in international, EU and national-level law. Hacking techniques are extremely invasive, particularly when compared with traditionally intrusive investigative tools (e.g. wiretapping, house searches etc.). Through hacking, law enforcement can gain access to all data stored or in transit from a device; this represents a significant amount of data (e.g. a recent investigation by Dutch law enforcement collected seven terabytes of data, which translates into around 86 million pages of Microsoft Word documents3), as well as extremely sensitive data (e.g. a person’s location and movements, all communications, all stored data etc.). Consequently, the use of hacking techniques will inherently restrict the fundamental right to privacy.

Therefore, current debates at international and EU fora focus on assessing and providing recommendations on the current legal balances and safeguards for the restriction of the right to privacy by hacking techniques. However, these debates have assumed that hacking practices are necessary for law enforcement and simply require governing laws; they have not discussed whether the use of hacking techniques by law enforcement is necessary and proportional. The law enforcement assertions regarding the necessity of these invasive tools have  not   been  challenged.

The second key risk relates to the security of the internet. Law enforcement use of hacking techniques has the potential to significantly weaken the security of the internet by “[increasing] the attack surface for malicious abuse”4. Given that critical infrastructure and defence organisations, as well as law enforcement agencies themselves, use the technologies targeted and potentially weakened by law enforcement hacking, the potential ramifications reach  far  beyond  the intended  target.

As such, debates at international and EU fora focus on the appropriate balances between security and privacy, as well as security and cybersecurity. Regarding security v. privacy, the debates to date have assessed and provided recommendations on the legislative safeguards required to ensure that hacking techniques are only permitted in situations where a restriction of the fundamental right to privacy is valid in line with EU legislation (i.e. legal, necessary and proportional). Regarding security v. cybersecurity, the debates have been limited and primarily centre around the use and/or reporting of zero-day vulnerabilities discovered  by  law enforcement agencies.

Further risks not discussed in the Joint Statement but covered by this study include: the risks to territorial sovereignty – as law enforcement agencies may not know the physical location of the target data; and the risks related to the supply and use of commercially-developed hacking tools by governments with poor consideration for human rights.

Alongside the analysis of international and EU debates, the study presents hypotheses on the legal  bases  for  EU  intervention  in  the  field. Although  possibilities for  EU  legal  intervention  in several areas are discussed, including mutual admissibility of evidence (Art. 82(2) TFEU), common investigative techniques (Art. 87(2)(c) TFEU), operational cooperation (Art. 87(3) TFEU) and data protection (Art. 16 TFEU, Art. 7 & 8 EU Charter), the onus regarding the development of legislation in the field is with the Member States. As such, the management of the risks associated with law enforcement activities is governed at the Member State level.

As suggested by the focus of the international and EU discussions, concrete measures need to be stipulated at national-level to manage these risks. This study presents a comparative analysis of the legal frameworks for hacking by law enforcement across six Member States, as well as certain practical aspects of hacking by law enforcement, thereby providing an overview of the primary Member State mechanisms for the management of these risks. Further illustrative examples are provided from research conducted in three non-EU countries.

More specifically, the study examines the legal and practical balances and safeguards implemented at national-level to ensure: i) the legality, necessity and proportionality of restrictions to the fundamental  right  to  privacy;   and ii) the security  of  the internet.

Regarding restrictions to the right to privacy, the study first examines the existence of specific legal frameworks for hacking by law enforcement, before exploring the ex-ante and ex-post conditions and mechanisms stipulated to govern restrictions of the right to privacy and ensure they are legal, necessary  and  proportional.

It is found that hacking practices are seemingly necessary across all Member States examined, as four Member States (France, Germany, Poland and the UK) have adopted specific legislative provisions and the remaining two are in the legislative process. For all Member States except Germany, the adoption of specific legislative provisions occurred in 2016 (France, Poland and the UK) or will occur later (Italy, the Netherlands).  This  confirms the  new  nature  of these investigative techniques.

Additionally, law enforcement agencies in all Member States examined have used, or still use, hacking techniques in the absence of specific legislative provisions, under so-called ‘grey area’ legal provisions. Given the invasiveness of hacking techniques, these grey areaprovisions are considered  insufficient  to adequately  protect the right to privacy.

Where specific legal provisions have been adopted, all stakeholders agree that a restriction of the right to privacy requires the implementation of certain safeguards. The current or proposed legal frameworks of all six Member States comprise a suite of ex-ante conditions and ex-post mechanisms that aim to ensure the use of hacking techniques is proportionate and necessary. As recommended by various UN bodies, the provisions of primary importance include judicial authorisation of hacking practices, safeguards related to the nature, scope and duration of possible measures (e.g. limitations to crimes of a certain gravity and the  duration  of  the hack,  etc.) and  independent   oversight.

Although many of these types of recommended conditions are common across the Member States examined – demonstrated in the below table – their implementation parameters differ. For instance, both German and Polish law permit law enforcement hacking practices without judicial authorisation in exigent circumstance if judicial authorisation is achieved in a specified timeframe. However, the timeframe differs (three days in Germany compared with five days in Poland). These differences make significant difference, as the Polish timeframe was criticised  by the Council  of  Europe’s  Venice Commission  for being  too long.5

Furthermore, the Member States examined all accompany these common types of ex-ante and ex-post conditions with different, less common conditions. This is particularly true for ex-post oversight mechanisms. For instance, in Poland, the Minister for internal affairs provides macro-level information to the lower (Sejm) and upper (Senat) chambers of Parliament;6 and in the UK, oversight is provided by the Investigatory Powers Commissioner, who reviews all cases of hacking by law enforcement, and the Investigatory Powers Tribunal, which  considers disputes or  complaints surrounding  law enforcement  hacking.7

Key ex-ante considerations
Judicial authorisation The    legal    provisions    of    all    six    Member    States    require    ex-ante judicial        authorisation        for        law        enforcement        hacking.        The information  to  be  provided  in  these requests differ.

Select     Member     States     (e.g.     Germany,     Poland,     the     UK)     also provide for hacking without prior judicial authorisation in exigent circumstances  if  judicial  authorisation  is subsequently  provided. The timeframes  for  ex-post authorisation  differ.

Limitation by crime and  duration All  six Member  States  restrict  the  use  of  hacking  tools  based  on the   gravity   of   crimes.    In    some    Member   States,    the    legislation presents  a  specific  list  of  crimes  for  which  hacking  is permitted; in     others,     the    limit    is    set     for    crimes    that    have    a    maximum custodial    sentence   of   greater   than    a   certain   number    of   years. The lists and numbers  of years required differ by Member   State.

Many Member States also restrict the duration for which hacking may   be   used.   This   restriction   ranges   from   maximum   1   month (France, Netherlands) to a maximum of 6 months (UK), although extensions     are     permitted     under     the     same     conditions     in     all Member States.

Key ex-post considerations
Notification and effective remedy Most    Member    States    provide    for    the    notification    of    targets    of hacking  practices and  remedy  in  cases  of unlawful   hacking.
Reporting and oversight Primarily, Member States report at a micro-level through logging hacking  activities and  reporting them  in  case  files.

However,   some   Member   States   (e.g.   Germany,   Poland   and   the UK) have macro-level  review  and  oversight mechanisms.

Furthermore, as regards the issue of territoriality (i.e. the difficulty law enforcement agencies face obtaining the location of the data to be collected using hacking techniques), only one Member States, the Netherlands, legally permits the hacking of devices if the location is unknown. If the device turns out to be in another jurisdiction, Dutch law enforcement must apply  for Mutual  Legal  Assistance.

As such, when aggregated, these provisions strongly mirror Article 8 of the European Convention on Human Rights, as well as the UN recommendations and paragraph 95 of the ECtHR  judgement  in  Weber and  Saravia  v.  Germany.  However,   there are  many,  and  varied, criticisms when the Member State conditions are examined in isolation. Some of the provisions criticised include: the limits based on the gravity of crimes (e.g. the Netherlands, France and Poland); the provisions for notification and effective remedy (e.g. Italy and the Netherlands); the process for screening and deleting non-relevant data (Germany); the definition of devices that can be targeted (e.g. the Netherlands); the duration permitted for hacking (e.g. Poland); and a lack of knowledge amongst the judiciary (e.g. France, Germany, Italy and the Netherlands).With this said, certain elements, taken in isolation, can be called good  practices. Such  examples  are  presented below.

Select  good practice: Member State legislative frameworks

Germany: Although they were deemed unconstitutional in a 2016 ruling, the provisions for the screening and deletion of data related to the core area of private life are a positive step. If the provisions are amended, as stipulated in the ruling, to ensure screening by an independent body, they would provide strong protection for the targeted individual’s private data.

Italy: The 2017 draft Italian law includes a range of provisions related to the development and monitoring of the continued use of hacking tools. As such, one academic stakeholder remarked that the drafting of the law must have been driven by technicians. However, these provisions bring significant benefits to the legislative provisions in terms of supervision and oversight of the use of hacking tools. Furthermore, the Italian draft law takes great care to separate the functionalities of the hacking tools, thus protecting against the overuse or abuse of a  hacking tool’s  extensive  capabilities.

Netherlands: The Dutch Computer Crime III Bill stipulates the need to conduct a formal proportionality assessment for each hacking request, with the assistance of a dedicated Central Review Commission (Centrale Toetsings Commissie). Also, the law requires rules to be laid down on the authorisation and expertise of the investigation officers that can perform hacking.

With these findings in mind, the study concludes that the specific national-level legal provisions examined provide for the use of hacking techniques in a wide array of circumstances. The varied combinations of requirements, including those related to the gravity of crimes, the duration and purpose of operations and the oversight, result in a situation where the law does not provide for much stricter conditions than are necessary for less  intrusive  investigative activities such  as interception.

Based on the study findings,  relevant  and actionable policy proposals and recommendations have been developed under the two key elements: i) the fundamental right  to  privacy;  and  ii) the security  of the internet.

Recommendations and policy proposals: Fundamental  right  to  privacy

It is recommended that the use of ‘grey area’ legal provisions is not sufficient to protect the fundamental right to privacy. This is primarily because existing legal provisions do not provide for the more invasive nature of hacking techniques and do not provide for the legislative precision  and  clarity  as  required  under  the  Charter and the  ECHR.

Furthermore, many of these provisions have only recently been enacted. As such, there is a need for robust evidence-based monitoring and evaluation of the practical application of these provisions. It is therefore recommended that the application of these new legal provisions is evaluated regularly at national level, and that the results of these evaluations are  assessed at  EU-level.

If specific legislative provisions are deemed necessary, the study recommends a range of good practice, specific ex-ante and ex-post provisions governing the use of hacking practices by  law  enforcement  agencies. These are detailed  in  Chapter 6.

Policy proposal 1: The European Parliament should pass a resolution calling on Member States to conduct a Privacy Impact Assessment when new laws are proposed to permit and govern the use of hacking techniques by law enforcement agencies. This Privacy Impact Assessment should focus on the necessity and proportionality of the use of hacking tools and should  require input  from  national  data protection  authorities.

Policy proposal 2: The European Parliament should reaffirm the need for Member States to adopt a clear and precise legal basis if law enforcement agencies are to use hacking techniques.

Policy proposal 3: The European Parliament should commission more research or encourage the European Commission or other bodies to conduct more research on the topic. In response to the Snowden revelations, the European Parliament called on the EU Agency for Fundamental Rights (FRA) to thoroughly research fundamental rights protection in the context of surveillance. A similar brief related to the legal frameworks governing the use of hacking techniques by law enforcement across all EU Member States would act as an invaluable piece  of  research.

Policy proposal 4: The European Parliament should encourage Member States to undertake evaluation and monitoring activities on the practical application of the new legislative provisions  that  permit  hacking  by  law  enforcement  agencies.

Policy proposal 5: The European Parliament should call on the EU Agency for Fundamental Rights (FRA) to develop a practitioner handbook related to the governing of hacking by law enforcement. This handbook should be intended for lawyers, judges, prosecutors, law enforcement officers and others working with national authorities, as well as non­governmental organisations and other bodies confronted with legal questions in the areas set out by the handbook. These areas should cover the invasive nature of hacking techniques and relevant safeguards as per international and EU law and case law, as well as appropriate mechanisms for supervision  and   oversight.

Policy proposal 6: The European Parliament should call on EU bodies, such as the FRA, CEPOL and Eurojust, to provide training for national-level members of the judiciary and data protection authorities, in collaboration with the abovementioned handbook, on the technical means for hacking in use across the Member States, their potential for invasiveness and the principles of  necessity  and  proportionality in  relation  to these  technical  means.

Recommendations and policy proposals: Security of  the  internet

The primary recommendation related to the security of the internet is that the position of the EU against the implementation of ‘backdoors’ and similar techniques, and in support of strong encryption standards, should be reaffirmed, given the prominent role encryption plays in our society and its importance to the EU’s Digital Agenda. To support this position, the EU should ensure continued engagement with global experts in computer science as well as civil society privacy and  digital  rights groups.

The actual impacts of hacking by law enforcement on the security of the internet are yet unknown. More work should be done at the Member State level to assess the potential impacts such that these data can feed in to overarching discussions on the necessity and proportionality of law enforcement hacking. Furthermore, more work should be done, beyond understanding the risks to the security of the internet, to educate those involved in the authorisation and use of  hacking  techniques by law enforcement.

At present, the steps taken to safeguard the security of the internet against the potential risks of hacking are not widespread. As such, the specific legislative provisions governing the use of hacking techniques by law enforcement, if deemed necessary, should safeguard the security of the internet and the security of the device, including reporting the vulnerabilities used to gain access to a device to the appropriate technology vendor or service provider; and  ensure  the  full  removal  of  the software  or hardware from the targeted  device.

Policy proposal 7: The European Parliament should pass a resolution calling on Member States to conduct an Impact Assessment to examine the impact of new or existing laws governing  the  use  of hacking  techniques by  law  enforcement on  the  security  of  the internet.

Policy proposal 8: The European Parliament, through enhanced cooperation with Europol
and the European Union Agency for Network and Information Security (ENISA), should
reaffirm its commitment to strong encryption considering discussions on the topic of hacking by law enforcement. In addition, the Parliament should reaffirm its opposition to the implementation of  
backdoors and  similar techniques in information technology infrastructures or  services.

Policy proposal 9: Given the lack of discussion around handling zero-day vulnerabilities, the European Parliament should support the efforts made under the cybersecurity contractual Public-Private Partnership (PPP) to develop appropriate responses to handling zero-day vulnerabilities, taking into consideration the risks related to fundamental rights and the security  of the internet.

Policy proposal 10: Extending policy proposal 4, above, the proposed FRA handbook should also cover the risks  posed  to  the  security  of the  internet  by  using hacking  techniques.

Policy proposal 11: Extending policy proposal 5, training provided to the judiciary by EU bodies such as FRA, CEPOL and Eurojust should also educate these individuals on the risks posed  to  the security  of  the internet  by  hacking  techniques.

Policy proposal 12: Given the lack of discussion around the risks posed to the security of the internet by hacking practices, the European Parliament should encourage debates at the appropriate fora specific to understanding this risk and the approaches to managing this risk. It is encouraged that law enforcement representatives should be present within such discussions.

Parliamentary Tracker : the EP incoming resolution on the EU-USA (so called) “Privacy Shield”…

 

NOTA BENE : Below the text that will be submitted to vote at the next EP plenary. As in previous occasions the text is well drafted, legally precise and it confirms the high level of  competence that the European Parliament (and its committee LIBE) has developed along the last 17 years from the first inquiry on Echelon (2000), the Safe Harbor (2000), the EU-USA agreement on PNR (since 2003 a thirteen year long lasting saga…) the SWIFT agreement (2006) …

What is puzzling are the critics raised against the  so called “adequacy finding” mechanism which empowers the European Commission to decide if a third Country protect “adequately” the EU citizens personal data. The weaknesses of the Commission face to our strongest transatlantic ally  were already very well known when recently the parliamentarians have reformed the European legal framework on data protection in view of the new legal basis foreseen by the Treaties and in the art. 7 and 8 of the EU Charter.  However the EP did’nt try to strengthen the “adequacy” mechanism by transforming it at least in a “delegated” function (so that it would had been possible for the EP to block something which could had weackened our standards).

Now the US Congress is weakening the (already poor) US data protection and the new US administration will probably go in the same direction.  It seems to me to easy  to complain now on something that you had recently the chance to fix..

Let’s now hope that the Court of Justice by answering to the request for opinion on the EU-Canada PNR agreement will give to the EU legislator some additional recommendations but as an EU citizen I would had preferred a stronger EU legislation instead of been ruled by european or national Judges…

Emilio De Capitani

B8‑0235/2017 European Parliament resolution on the adequacy of the protection afforded by the EU-US Privacy Shield (2016/3018(RSP))

The European Parliament,

–        having regard to the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU) and Articles 6, 7, 8, 11, 16, 47 and 52 of the Charter of Fundamental Rights of the European Union,

–        having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive)[1],

–        having regard to Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters[2],

–        having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)[3], and to Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA[4],

–        having regard to the judgment of the Court of Justice of the European Union of 6 October 2015 in Case C-362/14 Maximillian Schrems v Data Protection Commissioner[5],

–        having regard to the Commission communication to the European Parliament and the Council of 6 November 2015 on the transfer of personal data from the EU to the United States of America under Directive 95/46/EC following the judgment by the Court of Justice in Case C-362/14 (Schrems) (COM(2015)0566),

–        having regard to the Commission communication to the European Parliament and the Council of 10 January 2017 on Exchanging and Protecting Personal Data in a Globalised World (COM(2017)0007),

–        having regard to the judgment of the Court of Justice of the European Union of 21 December 2016 in Cases C-203/15 Tele2 Sverige AB v Post- och telestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others[6],

–        having regard to Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-US Privacy Shield[7],

–        having regard to Opinion 4/2016 of the European Data Protection Supervisor (EDPS) on the EU-US Privacy Shield draft adequacy decision[8],

–        having regard to the Opinion of the Article 29 Data Protection Working Party of 13 April 2016 on the EU-US Privacy Shield draft adequacy decision[9] and its Statement of 26 July 2016[10],

–        having regard to its resolution of 26 May 2016 on transatlantic data flows[11],

–        having regard to Rule 123(2) of its Rules of Procedure,

  1. whereas the Court of Justice of the European Union (CJEU) in its judgment of 6 October 2015 in Case C-362/14 Maximillian Schrems v Data Protection Commissioner invalidated the Safe Harbour decision and clarified that an adequate level of protection in a third country must be understood to be ‘essentially equivalent’ to that guaranteed within the European Union by virtue of Directive 95/46/EC read in the light of the Charter of Fundamental Rights of the European Union (hereinafter ‘the EU Charter’), prompting the need to conclude negotiations on a new arrangement so as to ensure legal certainty on how personal data should be transferred from the EU to the US;
  2. whereas, when examining the level of protection afforded by a third country, the Commission is obliged to assess the content of the rules applicable in that country deriving from its domestic law or its international commitments, as well as the practice designed to ensure compliance with those rules, since it must, under Article 25(2) of Directive 95/46/EC, take account of all the circumstances surrounding a transfer of personal data to a third country; whereas this assessment must not only refer to legislation and practices relating to the protection of personal data for commercial and private purposes, but must also cover all aspects of the framework applicable to that country or sector, in particular, but not limited to, law enforcement, national security and respect for fundamental rights;
  3. whereas transfers of personal data between commercial organisations of the EU and the US are an important element for the transatlantic relationships; whereas these transfers should be carried out in full respect of the right to the protection of personal data and the right to privacy; whereas one of the fundamental objectives of the EU is the protection of fundamental rights, as enshrined in the EU Charter;
  4. whereas in its Opinion 4/2016 the EDPS raised several concerns on the draft Privacy Shield; whereas the EDPS welcomes in the same opinion the efforts made by all parties to find a solution for transfers of personal data from the EU to the US for commercial purposes under a system of self-certification;
  5. whereas in its Opinion 01/2016 on the EU-US Privacy Shield draft adequacy decision the Article 29 Working Party welcomed the significant improvements brought about by the Privacy Shield compared with the Safe Harbour decision whilst also raising strong concerns about both the commercial aspects and access by public authorities to data transferred under the Privacy Shield;
  6. whereas on 12 July 2016, after further discussions with the US administration, the Commission adopted its Implementing Decision (EU) 2016/1250, declaring the adequate level of protection for personal data transferred from the Union to organisations in the United States under the EU-US Privacy Shield;
  7. whereas the EU-US Privacy Shield is accompanied by several letters and unilateral statements from the US administration explaining, inter alia, the data protection principles, the functioning of oversight, enforcement and redress and the protections and safeguards under which security agencies can access and process personal data;
  8. whereas in its statement of 26 July 2016, the Article 29 Working Party welcomes the improvements brought by the EU-US Privacy Shield mechanism compared with Safe Harbour and commended the Commission and the US authorities for having taken into consideration its concerns; whereas the Article 29 Working Party indicates, nevertheless, that a number of its concerns remain, regarding both the commercial aspects and the access by US public authorities to data transferred from the EU, such as the lack of specific rules on automated decisions and of a general right to object, the need for stricter guarantees on the independence and powers of the Ombudsperson mechanism, and the lack of concrete assurances of not conducting mass and indiscriminate collection of personal data (bulk collection);
  9. Welcomes the efforts made by both the Commission and the US administration to address the concerns raised by the CJEU, the Member States, the European Parliament, data protection authorities (DPAs) and stakeholders, so as to enable the Commission to adopt the implementing decision declaring the adequacy of the EU-US Privacy Shield;
  10. Acknowledges that the EU-US Privacy Shield contains significant improvements regarding the clarity of standards compared with the former EU-US Safe Harbour and that US organisations self-certifying adherence to the EU-US Privacy Shield will have to comply with clearer data protection standards than under Safe Harbour;
  11. Takes note that as at 23 March 2017, 1 893 US organisations have joined the EU-US Privacy Shield; regrets that the Privacy Shield is based on voluntary self-certification and therefore applies only to US organisations which have voluntarily signed up to it, which means that many companies are not covered by the scheme;
  12. Acknowledges that the EU-US Privacy Shield facilitates data transfers from SMEs and businesses in the Union to the US;
  13. Notes that, in line with the ruling of the CJEU in the Schrems case, the powers of the European DPAs remain unaffected by the adequacy decision and they can, therefore, exercise them, including the suspension or the ban of data transfers to an organisation registered with the EU-US Privacy Shield; welcomes in this regard the prominent role given by the Privacy Shield Framework to Member State DPAs to examine and investigate claims related to the protection of the rights to privacy and family life under the EU Charter and to suspend transfers of data, as well as the obligation placed upon the US Department of Commerce to resolve such complaints;
  14. Notes with satisfaction that under the Privacy Shield Framework, EU data subjects have several means available to them to pursue legal remedies in the US: first, complaints can be lodged either directly with the company or through the Department of Commerce following a referral by a DPA, or with an independent dispute resolution body, secondly, with regard to interferences with fundamental rights for the purpose of national security, a civil claim can be brought before the US court and similar complaints can also be addressed by the newly created independent Ombudsperson, and finally, complaints about interferences with fundamental rights for the purposes of law enforcement and the public interest can be dealt with by motions challenging subpoenas; encourages further guidance from the Commission and DPAs to make those legal remedies all the more easily accessible and available;
  15. Acknowledges the clear commitment of the US Department of Commerce to closely monitor the compliance of US organisations with the EU-US Privacy Shield Principles and their intention to take enforcement actions against entities failing to comply;
  16. Reiterates its call on the Commission to seek clarification on the legal status of the ‘written assurances’ provided by the US and to ensure that any commitment or arrangement foreseen under the Privacy Shield is maintained following the taking up of office of a new administration in the United States;
  17. Considers that, despite the commitments and assurances made by the US Government by means of the letters attached to the Privacy Shield arrangement, important questions remain as regards certain commercial aspects, national security and law enforcement;
  18. Specifically notes the significant difference between the protection provided by Article 7 of Directive 95/46/EC and the ‘notice and choice’ principle of the Privacy Shield arrangement, as well as the considerable differences between Article 6 of Directive 95/46/EC and the ‘data integrity and purpose limitation’ principle of the Privacy Shield arrangement; points out that instead of the need for a legal basis (such as consent or contract) that applies to all processing operations, the data subject rights under the Privacy Shield Principles only apply to two narrow processing operations (disclosure and change of purpose) and only provide for a right to object (‘opt-out’);
  19. Takes the view that these numerous concerns could lead to a fresh challenge to the decision on the adequacy of the protection being brought before the courts in the future; emphasises the harmful consequences as regards both respect for fundamental rights and the necessary legal certainty for stakeholders;
  20. Notes, amongst other things, the lack of specific rules on automated decision-making and on a general right to object, and the lack of clear principles on how the Privacy Shield Principles apply to processors (agents);
  21. Notes that, while individuals have the possibility to object vis-à-vis the EU controller to any transfer of their personal data to the US, and to the further processing of those data in the US where the Privacy Shield company acts as a processor on behalf of the EU controller, the Privacy Shield lacks specific rules on a general right to object vis-à-vis the US self-certified company;
  22. Notes that only a fraction of the US organisations that have joined the Privacy Shield have chosen to use an EU DPA for the dispute resolution mechanism; is concerned that this constitutes a disadvantage for EU citizens when trying to enforce their rights;
  23. Notes the lack of explicit principles on how the Privacy Shield Principles apply to processors (agents), while recognising that all principles apply to the processing of personal data by any US self-certified company ‘[u]nless otherwise stated’ and that the transfer for processing purposes always requires a contract with the EU controller which will determine the purposes and means of processing, including whether the processor is authorised to carry out onward transfers (e.g. for sub-processing);
  24. Stresses that, as regards national security and surveillance, notwithstanding the clarifications brought by the Office of the Director of National Intelligence (ODNI) in the letters attached to the Privacy Shield framework, ‘bulk surveillance’, despite the different terminology used by the US authorities, remains possible; regrets the lack of a uniform definition of the concept of bulk surveillance and the adoption of the American terminology, and therefore calls for a uniform definition of bulk surveillance linked to the European understanding of the term, where evaluation is not made dependent on selection; stresses that any kind of mass surveillance is in breach of the EU Charter;
  25. Recalls that Annex VI (letter from Robert S. Litt, ODNI) clarifies that under Presidential Policy Directive 28 (hereinafter ‘PPD-28’), bulk collection of personal data and communications of non-US persons is still permitted in six cases; points out that such bulk collection only has to be ‘as tailored as feasible’ and ‘reasonable’, which does not meet the stricter criteria of necessity and proportionality as laid down in the EU Charter;
  26. Deplores the fact that the EU-US Privacy Shield does not prohibit the collection of bulk data for law enforcement purposes;
  27. Stresses that in its judgment of 21 December 2016, the CJEU clarified that the EU Charter ‘must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for the general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication’; points out that the bulk surveillance in the US therefore does not provide for an essentially equivalent level of the protection of personal data and communications;
  28. Is alarmed by the recent revelations about surveillance activities conducted by a US electronic communications service provider on all emails reaching its servers, upon request of the National Security Agency (NSA) and the FBI, as late as 2015, i.e. one year after Presidential Policy Directive 28 was adopted and during the negotiation of the EU-US Privacy Shield; insists that the Commission seek full clarification from the US authorities and make the answers provided available to the Council, Parliament and national DPAs; sees this as a reason to strongly doubt the assurances brought by the ODNI; is aware that the EU-US Privacy Shield rests on PPD-28, which was issued by the President and can also be repealed by any future President without Congress’s consent;
  29. Expresses great concerns at the issuance of the ‘Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the National Security Agency under Section 2.3 of Executive Order 12333’, approved by the Attorney General on 3 January 2017, allowing the NSA to share vast amounts of private data gathered without warrants, court orders or congressional authorisation with 16 other agencies, including the FBI, the Drug Enforcement Agency and the Department of Homeland Security; calls on the Commission to immediately assess the compatibility of these new rules with the commitments made by the US authorities under the Privacy Shield, as well as their impact on the level of personal data protection in the United States;
  30. Deplores the fact that neither the Privacy Shield Principles nor the letters of the US administration providing clarifications and assurances demonstrate the existence of effective judicial redress rights for individuals in the EU whose personal data are transferred to a US organisation under the Privacy Shield Principles and further accessed and processed by US public authorities for law enforcement and public interest purposes, which were emphasised by the CJEU in its judgment of 6 October 2015 as the essence of the fundamental right in Article 47 of the EU Charter;
  31. Recalls its resolution of 26 May 2016 stating that the Ombudsperson mechanism set up by the US Department of State is not sufficiently independent and is not vested with sufficient effective powers to carry out its duties and provide effective redress to EU individuals; notes that according to the representations and assurances provided by the US Government the Office of the Ombudsperson is independent from the US intelligence services, free from any improper influence that could affect its function and moreover works together with other independent oversight bodies with effective powers of supervision over the US Intelligence Community; is generally concerned that an individual affected by a breach of the rules can apply only for information and for the data to be deleted and/or for a stop to further processing, but has no right to compensation;
  32. Regrets that the procedure of adoption of an adequacy decision does not provide for a formal consultation of relevant stakeholders such as companies, and in particular SMEs’ representation organisations;
  33. Regrets that the Commission followed the procedure for adoption of the Commission implementing decision in a practical manner that de facto has not enabled Parliament to exercise its right of scrutiny on the draft implementing act in an effective manner;
  34. Calls on the Commission to take all the necessary measures to ensure that the Privacy Shield will fully comply with Regulation (EU) 2016/679, to be applied as from 16 May 2018, and with the EU Charter;
  35. Calls on the Commission to ensure, in particular, that personal data that has been transferred to the US under the Privacy Shield can only be transferred to another third country if that transfer is compatible with the purpose for which the data was originally collected, and if the same rules of specific and targeted access for law enforcement apply in the third country;
  36. Calls on the Commission to monitor whether personal data which is no longer necessary for the purpose for which it had been originally collected is deleted, including by law enforcement agencies;
  37. Calls on the Commission to closely monitor whether the Privacy Shield allows for the DPAs to fully exercise all their powers, and if not, to identify the provisions that result in a hindrance to the DPAs’ exercise of powers;
  38. Calls on the Commission to conduct, during the first joint annual review, a thorough and in-depth examination of all the shortcomings and weaknesses referred to in this resolution and in its resolution of 26 May 2016 on transatlantic data flows, and those identified by the Article 29 Working Party, the EDPS and the stakeholders, and to demonstrate how they have been addressed so as to ensure compliance with the EU Charter and Union law, and to evaluate meticulously whether the mechanisms and safeguards indicated in the assurances and clarifications by the US administration are effective and feasible;
  39. Calls on the Commission to ensure that when conducting the joint annual review, all the members of the team have full and unrestricted access to all documents and premises necessary for the performance of their tasks, including elements allowing a proper evaluation of the necessity and proportionality of the collection and access to data transferred by public authorities, for either law enforcement or national security purposes;
  40. Stresses that all members of the joint review team must be ensured independence in the performance of their tasks and must be entitled to express their own dissenting opinions in the final report of the joint review, which will be public and annexed to the joint report;
  41. Calls on the Union DPAs to monitor the functioning of the EU-US Privacy Shield and to exercise their powers, including the suspension or definitive ban of personal data transfers to an organisation in the EU-US Privacy Shield if they consider that the fundamental rights to privacy and the protection of personal data of the Union’s data subjects are not ensured;
  42. Stresses that Parliament should have full access to any relevant document related to the joint annual review;
  43. Instructs its President to forward this resolution to the Commission, the Council, the governments and national parliaments of the Member States and the US Government and Congress.

NOTES
[1] OJ L 281, 23.11.1995, p. 31.
[2] OJ L 350, 30.12.2008, p. 60.
[3] OJ L 119, 4.5.2016, p. 1.
[4] OJ L 119, 4.5.2016, p. 89.
[5] ECLI:EU:C:2015:650.
[6] ECLI:EU:C:2016:970.
[7] OJ L 207, 1.8.2016, p. 1.
[8] OJ C 257, 15.7.2016, p. 8.
[9] http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2016/wp238_en.pdf
[10] http://ec.europa.eu/justice/data-protection/article-29/press-material/press-release/art29_press_material/2016/20160726_wp29_wp_statement_eu_us_privacy_shield_en.pdf
[11] Texts adopted, P8_TA(2016)0233.