European States Pushing for Unbridled Retention of Its Citizens’ Data
Mass surveillance policies often appease populist sentiment in the aftermath of a terrorist attack, but result in laws that are ambiguous and put citizens in danger, says former intelligence officer Asaf Lubin
SHARMINI PERIES: It’s The Real News Network. I’m Sharmini Peries, coming to you from Baltimore.
On the 21st of December, the European Court of Justice made one of the most significant decisions anywhere relating to mass surveillance, and the right to privacy. The European Court, in a decision conveying two separate cases before the Court, to determine that EU law precludes a blanket, and indiscriminate retention of traffic data, and location data.
COURT OF JUSTICE JUDGE: Read in the light of Article 7, 8, 11 and 52 of The Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation, which for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data. Of all subscribers, and registered users, relating to all means of electronic communication.
SHARMINI PERIES: This decision reinforces the challenges against mass surveillance and data retention from some institutions within the EU. However, the European Courts, and even the European Parliament, may have been pushing back against mass surveillance, but the same could not be said for the European member states. In fact, we have been witnessing a frightening regression within countries such as UK, Germany and France towards greater surveillance and less accountability.
Well, on to talk about this issue with me, is Asaf Lubin. He recently penned an article titled, “A New Era of Mass Surveillance is Emerging Across Europe.” Asaf Lubin is a former Israeli intelligence officer. He joins us today from London. He is completing his Doctor of Science and Law at Yale’s Law School, and is Robert L. Burstein International Human Rights Fellow, with Privacy International. Thank you so much for joining us, Asaf.
ASAF LUBIN: Thank you. I’m happy to be here.
SHARMINI PERIES: So, let’s begin with the current decision in the Watson case, in the European Court of Justice. What is the case, and the decision, and how does it affect us?
ASAF LUBIN: That Court decision actually concerned two separate cases that were joined. One — concerning data retention regulation in Sweden, and another concerning data retention regulation in the United Kingdom. And the Court was asked to determine the extent to which these data retention policies were in compliance with both Article 15, of the European Privacy and Electronic Communications Directive, as well as Article 7, 8 and 11 of the European Union Charter on Fundamental Rights. Which concern the right to privacy, the protection of personal data, and the freedom of expression.
And what the Court found, in essence, is that general and indiscriminate data retention of all communications, and all geo-locations data, were deemed not in compliance with these provisions. And what the Court further says, is that any access by a public authority to such retained data, must comply with the general tradition in all democratic societies. Of having to first prove reasonable suspicion that an individual was complicit, or instigated, or was involved with serious crime, including terrorism, and go seek a warrant. And in that regard the Court says, no to mass collection, and yes to targeted surveillance.
SHARMINI PERIES: And so, give us some specifics here. How does it relate to us, let’s say in terms of our democratic rights and freedoms, both for say, journalists, as well as the wider pubic?
ASAF LUBIN: Yeah, so, one thing that’s important to note, is that this decision comes in the wake of a wave of terrorist activity that has hit European soil, from France to Germany to Belgium. And the Court is sympathetic of the claims that are being brought by the governments, namely that such data retention, robust mass data retention, is necessary for combatting terrorist activity.
But the Court says that while you need modern techniques for investigations, that is not a blanket check to conduct, or catch all data retention. And in fact, they’re saying that in particular, in the context of, for example, privileged communications, such as those of a journalist, as you mentioned, the expectation is that you should set in play oversight mechanisms, minimization procedures.
To ensure that you only collect the data of those who are involved in such terrorist activities, and that you only access data of those who you have reasonable suspicion to believe that might have been involved. And in that regard, they’re securing a very fundamental tenant of democracy, which is the presumption of innocence.
SHARMINI PERIES: Right, and speaking of fundamentals, in your article you quote the former chief terrorism investigator for the French Judicial system, Marc Trévidic, who said, “If an intelligence law is not well conceived and rational, it could easily become a formidable weapon of repression. And intelligence law should not only protect citizens against terrorism, but also against the State. We in France are doing neither.” So, explain this to me, and our audience, and how does this affect us?
ASAF LUBIN: Yeah. Well, one thing that is important to note is that, as was mentioned, this tendency to create this rushed laws, in the wake of terrorist activities that might be kind of appeasing to populace messaging, and to the immediate electorate. Whereby we say we’re going to be tough on terrorism through greater surveillance.
Those policies result in laws that are ambiguous, that are vague, and that are putting us in danger. Just today, President Trump is reported as signing an Executive Order that potentially could strip privacy protections of non-Americans under The Privacy Act of 1974. And it’s yet another example of the way by which these surveillance legislations and policies tend to set one set of privacy protections for us, for the citizens, and another set of privacy protections for them, for the foreigners.
And those foreigners are highly subjected to these surveillance policies without being provided either oversight mechanisms, or the ability to seek redress in courts. Many of them would not have standing in domestic courts, to bring their claims against abuses. And in that regard, this is posing a great concern, these policies of mass bulk foreign surveillance.
SHARMINI PERIES: Right, and so this would be immigrants, refugees, and detainees, for example, that you know, are trying to come into the country and gets pulled away. So, this covers a huge number of people currently in the United States, including people that are here on, you know, maybe they have overstayed their Visas, and some of the workers that are here from Mexico and elsewhere. Give me an example, of how this could affect us.
ASAF LUBIN: So, I want to note two things. One is a recent publication from last week by The Intercept, which mentioned that a change in policy within U.S. accessibility requirements, which would now allow bulk data collected by the NSA to be shared with all other intelligence agencies of the United States, in raw.
What that means is, that under Executive Order 12333, the U.S. is conducting these mass surveillance operations, collecting mass data on foreigners, and inadvertently also data about Americans who are communicating with foreign individuals. And that information will now be shared with agencies such as the FBI, who also simultaneously have a second hat, that hat being conducting law enforcement, domestic policies.
And by doing so, will be circumventing again, one of the fundamental tenants of criminal investigations, which is a warrant process — going to the court, in the U.S. context, through our Fourth Amendment, search and seizure process. That will be now circumvented by gaining access to these foreign intelligence data, directly to those intelligence agencies.
SHARMINI PERIES: Right. Now, one of the issues about surveillance and mass data gathering, is that even though it might sometimes, like in the United States, violate our national or Constitutional laws, it doesn’t prevent another country from doing it for you. So, in the case of Canada, for example, Australia does this mass gathering and collecting and spying on its citizens for the Canadian government. Similar activities are going on for the U.S. Give us some explanation of how that works, and is that legal?
ASAF LUBIN: So, a particular concern that we have had here at Privacy International, concerns exactly these types of intelligence sharing arrangements. We also don’t like the word sharing. Sharing has this positive connotation. We believe sharing is good. But in these particular contexts, when intelligence is being shared between agencies, with the information surrounding the arrangements all being kept secret for confidential reasons, when we try to submit FOIA requests, Freedom of Information Act requests are being denied for national security reasons.
We don’t know how intelligence is accessed and shared, between members of the “Five Eyes” — that’s the United States, Canada, UK, New Zealand and Australia. But we also don’t know how it is being reviewed later. Is there any due diligence on the part of each of the agencies sharing or receiving data? And so, you have the potential for this revolving door, whereby America can say to the American people, “I’m not spying on you.” But then use its other intelligence agencies to be conducting intelligence operations on Americans. And through a revolving door intelligence-sharing process, receive information back on Americans.
We at Privacy International have recently submitted a case that is pending before the European Court of Human Rights, that addresses directly, the GCHQs, the equivalent of the NSA, the UK’s intelligence sharing with the NSA. And we’re telling the Court, we’re asking the Court, to confirm the position that the principal of legality. The principals of foreseeability require these intelligence agencies to disclose information about their intelligence apparatus, and intelligence-sharing mechanisms, with other states, and that that should be put under statutory authorization. Under primary legislation, which is lacking in most, if not all of these countries.
SHARMINI PERIES: Right. So, practically now, if the UK, as a result of Brexit, for example, pulls out of the EU and the ECJ, that’s the European Court of Justice, what will this mean, that UK is no longer bound by the European Court’s decision? Is that correct?
ASAF LUBIN: Yeah. So, what it would immediately mean, and perhaps it is too early to call what Brexit would actually look like. We don’t know what kind of Brexit we’ll have. But what it would immediately mean is, that we’ll lose one check, and that is indeed, the Court of Justice of the European Union. That would just deliver this Watson intel itu decision that we’ve just talked about.
So, the union would mean leaving that court. It is important to note however, that it does not mean leaving the Council of Europe, which includes the protections under the European Convention of Human Rights, which are monitored through the European Court of Human Rights. So, we’ll have a second set of protections through that Court.
But it is important for all European Member States, who are now going to negotiate with the UK, an arrangement on how this Brexit will look like. To ensure that the UK complies with data regulations and data standards, namely protection over personal data that are set by the European Union and the European Court. In essence, forcing the UK to still adhere to these policies despite its potential lead.
SHARMINI PERIES: Asaf, there’s a lot to cover here. We look forward to having you back again.
ASAF LUBIN: Thank you so much for having me.
SHARMINI PERIES: And thank you for joining us on The Real News Network.