EU hashes terrorist data deal

Human rights and personal privacy sacrificed once more in the name of collective government security

What a hash Europe has made of its agreement to give US federal police access to its personal banking data.

The European Parliament made a vocal attempt at turning the Terrorist Finance Tracking Programme, which involves giving mountains of personal banking data to US investigators, into something of which Europe could be proud. But it never had a hope.

National governments wanted a deal done on Washington's terms -- no matter that it drove a spike through Europe's much-besieged data protection principles. The only way Europe could have done this data deal with any integrity would have been to reject it outright.

The TFTP agreement, approved by the parliament last Thursday, allows US agents to subpoena a private European company for personal data without going through a judicial authority. There is some disagreement in Europe over whether police data search warrants should require a court order. While in many cases they do, the TFTP deal establishes a distinctly un-European precedent -- allowing even a non-European police agency unwarranted access to personal data.

US requests for TFTP data are passed to Europol, a police agency with which the US also shares intelligence gleaned from the requests. And Europol can ask the US to make a request for TFTP data to help with its own investigations. The US returns such requests to Europol for approval.

The European Commission and European Parliament praised the deal for the protection it provided people whose banking data is accessed. But its protections are a sop. Europe's data protection commissioners opposed the deal, as did the European Data Protection Supervisor, because EU law wouldn't permit it. The commission ensured the deal's legal integrity by removing clauses that held it accountable to the European Convention on Human Rights and the Charter of Fundamental Rights.

It breached the principles of necessity and proportionality by allowing US agents to bulk-copy loads of private banking data in their hunt for terrorist financiers. In an age when technology provides a simple means for the mass collection and processing of personal data, these principles are increasingly disregarded.

Retrospectively short-sighted

The same is becoming true of police warrants more broadly. A briefing paper published this month by JUSTICE, the human rights law group, noted how a proposed European Investigation Order covering police requests for data, intercepts, search warrants and so on omitted to require such orders be necessary and proportionate.

Like the TFTP agreement, the European Investigation Order (EIO) seeks to give police agencies authority to approve one another's requests for evidence. Jodie Blackstock, author of the JUSTICE brief, said European human rights law requires that all such requests be granted by a judicial authority.

Like the TFTP agreement, the proposed EIO did not provide an adequate means of redress for people wrongly fingered by the police using these lax rules of evidence-gathering, did not require reasonable grounds of suspicion for a warrant to be issued, and provided only weak grounds for refusing a request. And the evidence for dropping these precautions was itself lacking.

Oversight of the latest TFTP agreement is retrospective and severely limited. An example is its pledge that the TFTP, but not data derived from it, "does not and shall not involve data mining or any other type of algorithmic or automated profiling or computer filtering". It is peppered with disingenuous morsels of this kind, presented instead of direct accountability to human rights law.

All in all, the precedent set by the TFTP is one that is gradually making its way into European and international law, which is that police data-sharing and processing should be enhanced with all the powers computers offer, that operational convenience overrides the principles of necessity and proportionality, and that judicial oversight must similarly not be allowed to create a bottleneck: considered, independent restraint has no place in the information age. All we can expect is share now, ask later.

As JUSTICE says in relation to the EIO, it continues a trend for human rights to be dropped for the sake of the operational efficiency of international policing joint ventures, but this overlooks that the increased ease of such co-operation makes human rights more important than ever.

Mark Ballard is a freelance journalist who writes about computer policy, crime, security, law and systems.

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Why Angela Merkel's comments about the UK and US shouldn't be given too much weight

The Chancellor's comments are aimed at a domestic and European audience, and she won't be abandoning Anglo-German relationships just yet.

Angela Merkel’s latest remarks do not seem well-judged but should not be given undue significance. Speaking as part of a rally in Munich for her sister party, the CSU, the German Chancellor claimed “we Europeans must really take our own fate into our hands”.

The comments should be read in the context of September's German elections and Merkel’s determination to restrain the fortune of her main political rival, Martin Schulz – obviously a strong Europhile and a committed Trump critic. Sigmar Gabriel - previously seen as a candidate to lead the left-wing SPD - has for some time been pressing for Germany and Europe to have “enough self-confidence” to stand up to Trump. He called for a “self-confident position, not just on behalf of us Germans but all Europeans”. Merkel is in part responding to this pressure.

Her words were well received by her audience. The beer hall crowd erupted into sustained applause. But taking an implicit pop at Donald Trump is hardly likely to be a divisive tactic at such a gathering. Criticising the UK post-Brexit and the US under Trump is the sort of virtue signalling guaranteed to ensure a good clap.

It’s not clear that the comments represent that much of a new departure, as she herself has since claimed. She said something similar earlier this year. In January, after the publication of Donald Trump’s interview with The Times and Bild, she said that “we Europeans have our fate in our own hands”.

At one level what Merkel said is something of a truism: in two year’s time Britain will no longer be directly deciding the fate of the EU. In future no British Prime Minister will attend the European Council, and British MEPs will leave the Parliament at the next round of European elections in 2019. Yet Merkel’s words “we Europeans”, conflate Europe and the EU, something she has previously rejected. Back in July last year, at a joint press conference with Theresa May, she said: “the UK after all remains part of Europe, if not of the Union”.

At the same press conference, Merkel also confirmed that the EU and the UK would need to continue to work together. At that time she even used the first person plural to include Britain, saying “we have certain missions also to fulfil with the rest of the world” – there the ‘we’ meant Britain and the EU, now the 'we' excludes Britain.

Her comments surely also mark a frustration born of difficulties at the G7 summit over climate change, but Britain and Germany agreed at the meeting in Sicily on the Paris Accord. More broadly, the next few months will be crucial for determining the future relationship between Britain and the EU. There will be many difficult negotiations ahead.

Merkel is widely expected to remain the German Chancellor after this autumn’s election. As the single most powerful individual in the EU27, she is the most crucial person in determining future relations between the UK and the EU. Indeed, to some extent, it was her intransigence during Cameron’s ‘renegotiation’ which precipitated Brexit itself. She also needs to watch with care growing irritation across the EU at the (perceived) extent of German influence and control over the institutions and direction of the European project. Recent reports in the Frankfurter Allgemeine Zeitung which suggested a Merkel plan for Jens Weidmann of the Bundesbank to succeed Mario Draghi at the ECB have not gone down well across southern Europe. For those critics, the hands controlling the fate of Europe are Merkel’s.

Brexit remains a crucial challenge for the EU. How the issue is handled will shape the future of the Union. Many across Europe’s capitals are worried that Brussels risks driving Britain further away than Brexit will require; they are worried lest the Channel becomes metaphorically wider and Britain turns its back on the continent. On the UK side, Theresa May has accepted the EU, and particularly Merkel’s, insistence, that there can be no cherry picking, and therefore she has committed to leaving the single market as well as the EU. May has offered a “deep and special” partnership and a comprehensive free trading arrangement. Merkel should welcome Britain’s clarity. She must work with new French President Emmanuel Macron and others to lead the EU towards a new relationship with Britain – a close partnership which protects free trade, security and the other forms of cooperation which benefit all Europeans.

Henry Newman is the director of Open Europe. He tweets @henrynewman.

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