EU and US discuss divergent recommendations on mass surveillance

Monika Ermert, Heise, Intellectual Property Watch, VDI-Nachrichten, Germany

PUBLISHED ON: 15 Jan 2014

Both the Justice and Civil Liberties Committee (LIBE) of the European Parliament and the United States Senate Committee on the Judiciary have just discussed reactions - legislative, administrative and diplomatic - to mass surveillance programs revealed by Edward Snowden. Real change of the big brother-like systems at least for EU citizens can hardly be expected: The US President’s Review Group on Intelligence and Communication Technologies expressed that mass retention and profiling of data have the potential to prevent a future 9/11. Furthermore, the European Parliament has little power to enforce some of its more onerous recommendations.

The five experts of the US Review Group (including three law professors and two intelligence officers) at a hearing in Washington yesterday reiterated their findings that the mass surveillance of phone communication in the US has “not played a significant role in disrupting any terrorist attack,” as former CIA Deputy Director Michael Morell acknowledged. This is contrary to figures presented earlier last year by the NSA leadership. Yet Morell also said that the program would  “only [have] to be successful once [in the future] to be invaluable.”

Time of war-perspective

Morell was the Review Group member who recently pushed back publicly against reports stating the experts were favouring ending even the most hotly questioned paragraph about spying-Section 215 of the Patriot Act, which concerns domestic spying. Ending any spying programs against non-nationals is out of the question. The expert group assured the Senate yesterday that the structure of Section 702 of the Foreign Intelligence Surveillance Act, which legalizes programs such as PRISM, would not be touched. Some members of the group warned against measures that they were concerned would weaken the NSA in its fight against terrorism.

“We are trying to fight a war within our own values,” said Senator Lindsay Graham (Republican), who also indicated there was a “fundamental difference of intelligence gathering” in times of war: “We got to hit them before they hit us.” The aggressive rhetoric was also echoed by remarks from his Republican colleague Ted Cruz, who questioned protections that the review group recommended with regard to religious and political beliefs: “I take it that a commitment to the jihad would not be a religious position.” For Cruz, it is a simple matter. The US federal government, he said, had not been effective enough in tracking the bad guys and instead extended surveillance to everyone.

While the Chair of the Judiciary Committee, Senator Patrick Leahy, and some of his Democratic colleagues were much more favourable to reforms of the surveillance system, the focus most certainly is on tweaking the existing legal regime. One possible measure would be to install a public interest advocate to be present in the FISA court procedures. Another option could be to opt for private, rather than state, data retention to prevent possible abuse or the slippery slope towards abuse. Current safeguards in the NSA, the Review Group emphasized, were pretty good. “We found no evidence of  political or religious targeting,” law professor Cass Sunstein said at the outset.

More pressure on US necessary

The proposals discussed in the US yesterday would satisfy only the most cautious and conservative members of the LIBE committee, if anybody – even if everything will be acknowledged by the US President, passed through Congress by way of new or reformed legislation, or be clarified by the US Supreme Court down the road. EU Rapporteur Claude Moraes (S&D) was applauded by most of his colleagues when he officially presented the draft recommendations last week, asking for a stop of blanket surveillance by the US in the first place.

The parliamentarian proposals include the suspension of key agreements regarding data transfers, namely the Safe Harbour Agreement and the Terrorist Finance Tracking Program Agreement that have previously been passed by the European Parliament.  After a four-month-long inquiry, LIBE members concluded that one of the major conditions to rebuilding trust is reaching an outcome from the slow and cumbersome negotiations about a data protection umbrella agreement. Liberal Sophie In't Veld also called into question the conclusion of the much-wanted trade agreement, the Transatlantic Trade and Investment Partnership (TTIP). She said it could not be decided before the US offered watertight guarantees for privacy and the protection of fundamental rights for EU citizens.

The US might address non-US concerns only if there is additional pressure, perhaps from the US tech industry which believes that it may lose money in the EU markets. Many politicians, including the German Left Party, called for a debate in the Berlin parliament on the lack of responsiveness by the US government to a possible no-spy agreement.

Meltdown of rule of law

The LIBE Committee members in their report also blamed member states for what Green Party member Jan Philipp Albrecht called a “meltdown of the rule of law.” The European police agency Europol has reiterated several times that there was no request by member states to investigate the “cyberattacks” by US spies, their partners (including the services of member states), or their contractors. “That is a scandal”, Albrecht said. In't Veld ironically commented, if nobody bothers to enforce the existing law, why bother to develop new legislation?

In addition to passing the new data protection directive and prosecution of illegal spy activities by foreign services, Moraes also put a considerable number of recommendations concerning EU-related actions in the report.

The UK, Germany, France, Sweden, and the Netherlands in particular were asked to revise where necessary their own legislation to bring the work of their intelligence services in line with the European Convention of Human Rights. In an attempt to put pressure on the “bad guys” in the EU club, the Secretary General of the Council of Europe is called upon to start an Article 52 procedure to remind EU governments of their obligations according to the Convention.

Powerless Parliament?

All this might not be enough, commented Claudia Ernst, LIBE member for the Left Party. “This is not at all only about lost trust in the transatlantic relationship”, Ernst said. “It is about very profound questions about the future society, fundamental rights, and freedom.” The report, which the LIBE committee members assured must not be shelved, should be followed up with action and enforcement activities.

At the same time, the MEPs know that their competency is way too limited to see this through. Since it does not sit at the table where additional safeguards are negotiated, the Parliament can only call to suspend existing agreements. Access to these processes are often limited. The Parliament does not even have the powers to hold formal hearings and ask their inquiry witnesses under oath. This lack of power has resulted in some member state governments and agencies simply declining to share information with the elected politicians – as the leaders of the NSA did. The German, Swedish, and Dutch Secret Service did not even find it necessary to send answers to the requests from Brussels, but rather just ignored them. This is not a promising indication of the capacity of the EU to stay safe from erosions of rights, much less the intended erosions of sovereignty resulting from the acts of foreign intelligence services.

In some EU member states, parliaments are now starting to re-consider how to react to the US's non-responsiveness towards European concerns. Recent news from the US did suggest that the US side was not prepared to really cooperate to solve the issues, Lars Klingbeil (SPD), member of the German Parliament, said in a plenary debate on Wednesday. “Certainly, friends are entiteled to frank words,” he said, “and we should talk about all the instruments, if the US won’t talk with us.” Obama will announce his conclusions from the expert report on Friday.

1 Comment

John Laprise

22 January, 2014 - 07:24

While the discussion resulting from the Snowden revelations focuses on mass surveillance, we should not be sidetracked by that label. The Internet affords nations with the technological capability, wealth and will to perform mass espionage. International treaties about espionage are few and far between and certainly do not address present day technological capabilities. States which reap rewards from the intelligence gathering of a major ally which happens to view their citizens as ancillary targets are unlikely to act against that ally. This outcome is even less likely in the legal vacuum which is international espionage law.

Add new comment