Mass Surveillance Violates EU Law

A new study says so. It’s titled “Mass Surveillance of Personal Data by EU Member States and its Compatibility with EU Law.”

Sergio Carrera is a Spanish jurist. Francesco Ragazzi is Netherlands-based Leiden University Professor of International Relations.

They co-wrote the study. They did so with Didier Bigo, Nicholas Hernanz, Julien Jeandesboz, Joanna Parkin, and Amandine Scherrer.

The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs commissioned it.

The Centre for European Policy Studies (CEPS) republished it with EP permission. It’s called SEPS Paper in Liberty and Security in Europe No. 61/November 2013. More on it below.

The lead study authors hold America and EU nations responsible for violating European law. They want it stopped. They want European parliamentarians acting responsibly to do so.

They said NSA, Britain’s GCHQ, as well as comparable intelligence operations in France, Germany, the Netherlands and Sweden breached EU charter provisions.

EU agencies like Europol and IntCen (EU Intelligence Analysis Centre) illegally use stolen data. According to Carrera:

It’s no longer credible to say the EU has no legal competence and should do nothing on this. Sorry, we don’t think this is acceptable.

We are witnessing a systematic breach of people’s fundamental rights.

Ragazzi added:

The bigger the crisis, the more the system of checks and balances should be reinforced. This is what distinguishes democracies from police states.

Apologists claim national security as cover. Britain’s EU ambassador, John Cunliffe, replicates others saying “national security is the sole responsibility of member states.”

Carrera and Ragazzi urged European parliamentarians (MEPs) to use “all their powers at their disposal” to break what they call a wall of silence.

The EU parliament should block a European/US trade agreement unless NSA and GCHQ fully disclose their surveillance operations, they say.

They want EU countries to draft a “professional code for the transnational management of data.”

They want legislation to stop online companies from improperly cooperating with intelligence agencies. They want whistleblowers like Snowden protected.

They want a permanent oversight body on intelligence matters created. They said “(s)urveillance of population groups is not a new phenomenon in liberal regimes.”

NSA/GCHQ revelations remind them of previous intelligence service transgressions. Information Snowden revealed far exceeds earlier lawlessness.

He disclosed “a reconfiguration of surveillance that enables access to a much larger scale of data than telecommunications surveillance of the past,” they said.

The purpose and scale of today’s surveillance “are precisely at the core of what differentiates democratic regimes from police states.”

Intelligence services haven’t provided acceptable explanations of their activities. Oversight is largely absent.

Under European law, individuals own their own data. It’s a core principle. The EU Charter of Fundamental Rights protects it.

So does the EU Treaty. At issue is whether unauthorized access to private information is theft. If so, are responsible parties criminally liable?

Channels permitting lawful searches exist. The EU/US Mutual Legal Assistance Agreement (MLAA) covers criminal investigations and counterterrorism activities.

Snowden’s revelations show NSA and its EU counterparts violated European law. The EU Charter of Fundamental rights protects everyone, not just EU citizens.

The European Convention on Human Rights (ECHR) guarantees universal privacy. US constitutional law prohibits illegal searches and seizures. It does so for US citizens.

Bringing America into compliance with European law requires legislation doing so. An international digital bill of rights is needed.

Getting it won’t be easy. Nor will changing US law. Congress supports NSA lawlessness. Pending congressional legislation legitimizes it.

The study authors concluded the following:

Practices of large-scale surveillance have to be carefully examined from a fundamental rights perspective.

The implications are far-reaching. They go well beyond the “traditional dilemma between the rights of citizens to data protection and the right of the state to depart from the rule of law in the name of national security.”

They raise fundamental questions about what kind of societies we want. What kind are acceptable? What lines must never be crossed? What freedoms are too precious to lose?

Fighting terrorism and organized crime legally is acceptable. Breaching legal standards can’t be tolerated.

NSA and their European counterparts were caught red-handed doing it. What’s done about it matters most.

Meta-data-mining and freedom can’t coexist. Carrera and Ragazzi et al said:

(I)n a democracy, large-scale surveillance restructures the very notion of security and protection of human beings as well as the conception of freedom and fundamental rights.

Mass surveillance “disrupts social cohesion.” Inaction by European authorities to stop lawless practices assures they’ll continue. “(S)ilence could be interpreted as complicity.”

The controversies raised by the recent revelations will not vanish easily. Action, or lack thereof, by the European Parliament will be watched carefully.

The Commission has already asked the Director of the NSA and the UK representative in Brussels to account for what has happened.

Letters have been sent but no answers have been received. The credibility of the Commission itself is at stake, and more generally that of the EU institutions.

A Final Comment

Heads of Britain’s three intelligence services (GCHQ, MI5 and MI6) gave unprecedented public testimony. They did so on Thursday before Parliament’s Intelligence and Security Committee (ISC).

They defended the indefensible. They lied claiming documents Snowden released damaged their ability to keep Britain safe. MI6 head John Sawers said:

The leaks from Snowden have been very damaging, and they’ve put our operations at risk.

It’s clear that our adversaries are rubbing their hands with glee. Al Qaeda is lapping it up.

According to GCHQ head Iain Lobban:

Terrorist groups abroad “and closer to home (assessed) the communications packages they use now and the communication packages they wish to move to avoid what they now perceive to be vulnerable communications methods.”

The cumulative effect of global media coverage will make our job far, far harder for years to come.

MI5 head Andrew Parker piously claimed:

The work we do is addressing directly threats to this country, to our way of life and to the people who live here.

The suggestion that somehow what we do is somehow compromising freedom and democracy. Of course, we believe the opposite to be the case.

Session format was Q & A. It was more lovefest than grilling. Former Tory Defense and Foreign Secretary Malcomb Rifkind led it.

He chairs Britain’s Intelligence and Security Committee. MI6 once reported to him. Testimony featured largely unchallenged misinformation. Specifics weren’t discussed.

London’s Guardian said “the three intelligence chiefs came to Westminster’s Boothroyd Room and pretended to be grilled.”

At the same time, they arranged for a two minute TV pause button in case anyone inadvertently revealed something secret.

The Guardian called them “a trio of Draculas in the winter sun. (They) made their daylight debut.” The atmosphere was “tea and crumpets.”

It featured “opacity.” Viewers must have wondered why they wasted their time tuning in. Nothing they most need to know was discussed. Platitudes and dissembling substituted.

Claims about disrupting dozens of terrorist plots were lies. NSA makes the same false bold assertions.

In response to whether GCHQ violates UK law, Lobban lied saying:

We do not spend our time listening to the telephone calls or reading the emails of the majority. That would not be proportionate. That would not be legal, and we would not do it.

False! GCHQ’s Tempora system intercepts and stores all optic fiber cable data passing through Britain.

Snowden called it “full take.” It’s vast. “It snarfs everything in a rolling buffer to allow retroactive investigation without missing a single bit.”

UK privacy doesn’t exist. GCHQ has access to virtually all electronic communications. It takes full advantage.

Prior testimony by intelligence service chiefs was always private. Brits never knew who headed MI5 (internal security) until 1992.

In 1994, John Major’s government admitted the existence of MI6 (foreign intelligence) for the first time.

Mass surveillance is official UK policy. Parliament supports it. Business as usual continues. Thursday’s session did nothing to change things.

Stephen Lendman lives in Chicago and can be reached at [email protected]. His new book is titled How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening. http://www.progressiveradionetwork.com/the-progressive-news-hour/