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.
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.