From October 14th and November 11th, the European Parliament held three hearings on their ongoing investigation of mass electronic surveillance of European citizens in Brussels.
In the 7th, 8th and 9th hearings held by the LIBE committee, Members of the European Parliament (MEPs) focussed on violation of law, IntCen and mass surveillance in EU member states and the Freedom act respectively.
Judicial redress and rule of law at stake
At the 7th hearing, members of the LIBE committee debated the legal situation with regard to alleged surveillance activities in the light of international, Council of Europe and EU law.
Experts, such as Martin Scheinin, former UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, explained that the US massive surveillance activities are in breach of article 17 of the International Covenant on Civil and Political Rights guaranteeing that ”no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence”. As a consequence, he suggested the possibility of presenting an inter-state complaint on the basis of this violation since NSA activities went far beyond proportionality and legitimate limitation to this right.
Regarding the surveillance activities done by some EU member states such as the UK, Judge Bostjan Zupan?i? from the European Court of Human Right (ECHR) and MEPs got to the conclusion that even if these activities are unacceptable and an infringement to privacy, it will be difficult for surveillance victims to sue the UK in front of the ECHR since it is a court of last resort that you can only access once you have fulfilled the exhaustion of domestic remedies requirement. In that case citizens’ right to a fair trial and rule of law would be seriously undermined.
Moreover, the jurisdiction of EU law is not clear since its indicates that Member states are responsible for their own national security but at the same time there is a shared competence on the EU security (See Article 4.2 of the Treaty on the EU). In matters of intelligence, all the competence lies in the hands of the member states, meaning that there is no harmonisation on the EU level, and all 28 states are more or less free to regulate the matter on their own.
However, due to the mass surveillance programs targeting the whole EU territory, some MEPs are calling for a reexamination of the competence level. Since a potential threat of a member state security is also a threat for the EU in general the EU and its member states should have shared competence on national security and intelligence.
Judicial redress appears to very difficult to obtain in cases involving mass surveillance. Greater clarity and a better legal framework is needed in order to ensure the rule of law and to protect citizens’ right to privacy.
The EU response to mass-surveillance
The 8th inquiry hearing focused on the EU Intelligence Analysis Center (IntCen) activities and the EU member states national programs for mass surveillance.
Sergio Carrera, Center for Europeans Policy Studies, and Francesco Ragazzi, Leiden University (NL) presented a study on mass-scale surveillance in which they accused the NSA and the European equivalent bodies from the UK, France, Germany, the Netherlands and Sweden of breaching basic articles of the EU treaties and privacy clause in the EU Charter of fundamental rights. Moreover, the study found that it is more than likely that EU agencies such as EUROPOL, the joint police body and IntCen were using data stolen from EU citizens.
They urged the European Parliament to take actions against these illegal activities and suggested to block the negotiations on TTIP unless the NSA and the UK intelligence service disclosed the full nature of their surveillance programs. This possibility was already introduced by some MEPs as they tabled amendments to freeze these negotiations until the spying activities have not been clearly explained on a vote this summer. Regrettably, the proposed additions did not get approval from enough representatives, and the amendment was not included in the final resolution. Finally, the ideas of creating new EU laws to stop internet companies giving information to intelligence services, to protect whistleblowers such as the NSA leaker Edward Snowden, and to form a permanent oversight body on intelligence matters were discussed.
9th Hearing – the USA Freedom Act
In the 9th hearing held by the LIBE committee, the MEPs focussed on the USA Freedom Act. This bill was introduced by Senator Patrick Leahy and Jim Sensenbrenner, Chairman of the US Congress Subcommittee on Crime, Terrorism, Homeland Security and Investigations and it is intended to end the NSA’s bulk collection of American citizens’ communication records by amending the US Patriot Act and modifying (but not abolishing) the FISAA Court.
MEPs welcomed this bill but also expressed their concerns to Mr. Sensenbrenner concerning the protection of EU citizens. Since this responsibility do not fall on the US Congress, this particular issue will be discussed by Viviane Reding, the EU commissioner for Justice and Eric Holder, the US Attorney General, at a meeting next week in Washington.
Involvement of IT firms in mass-surveillance
Microsoft, Google and Facebook had to answer questions of LIBE members in the second part of this hearing regarding their implication on mass-surveillance activities. All three companies denied the existence of back doors in their servers. Although Dorothee BELZ, Vice-President of Legal and Corporate Affairs for Microsoft EMEA, admitted that if backdoors existed, she is either not aware of them or not allowed to disclose their existence (!).
All three company representatives explained how they handle requests for personal data by first verifying the authenticity and legality of the request before giving the needed information. All assured the audience that they have never given the NSA, or any government in the world, direct and/or unfettered access to their servers.
These companies strongly denied accusations that have been made against them in the press on their involvement on mass-surveillance activities and even declared that they didn’t know about such program as PRISM until the news came out in the press.
These statements clearly didn’t convince most of the MEPs who find if difficult to believe that IT companies had no participation whatsoever in the PRISM or Tempora programs.
Coming next
The 10th hearing of the LIBE inquiry will take place on November 14. Members of the LIBE committee will be discussing the IT security of the EU Institutions.
Stay tuned for updates on the developments of this historical investigations. We’ve been cataloguing each hearing in a special series, we will be uploading the rest of the post soon.
LIBE Series Posts
Series 7, 8, and 9: Violation of law, IntCen & mass surveillance in EU member states and freedom
Series 6: Safe Harbour under scrutiny by the European Parliament
Series 5: The “policy of empty seats” shakes Members of European Parliament
Series 4: Civil Society and former whistleblowers weigh in
Series 3: MEPs call for suspension of the counter terrorism cooperation with the US ally
Series 1 and 2: The European Parliament launches its investigation on extensive spying