Comments on the LIBE report on the surveillance programme of NSA

Chris Gioran bio photo By Chris Gioran

Last week, on 8th of January, the Committee on Civil Liberties, Justice and Home Affairs of the European Union released the draft of its report on the surveillance programme of the US NSA and various member state’s surveillance bodies. I’d like to discuss some of its contents as they paint a very interesting picture of the transatlantic relations and the impact the press’ actions have had on them.

First, some facts that were first revealed to me through this report and which are not widely known, as far as i can tell.

There is a process for the exchange of data between the US and the EU called Safe Harbour. There have been complaints filed from the EU against the US practices of securing access and ensuring the privacy of this data, once in 2002 and again in 2004. The US have acknowledged but not complied to the EU suggestions in violation of the Safe Harbour requirements (as mentioned on p11 §Z of the report). Safe Harbour transfers are supposed to facilitate exchange of data for persons suspect of crimes (p14 §AR). Overall, that means that the EU does cooperate as a whole in personal data exchange programmes with the US but for very specific reasons and requiring a certain degree of security. Moreover, the EU requires the right for EU persons to request and given the opportunity to alter data about themselves no matter where said data is held, something that the US have not provided (p14 §AP).

The above are mentioned at the beginning of the report, exposing essentially the current data exchange frameworks and problems it has experienced in the past. However, it goes on to comment on the current state of affairs, mostly mentioning the media revelations mentioning Edward Snowden (p7 §C) and Glenn Greenwald (p13 §AM). Among the most interesting things are:

  • The access of SWIFT banking data from US for which no explanation has been given (p13 §AM, p23 §44)
  • Points specifically to the GHCQ (the UK intelligence service) programmes and speculates on the existence of similar programmes in France, Germany and Sweden (p16 §2)
  • Directly calls massive, untarget surveillance programmes a threat to democracy, fundamental rights of individuals, an attack on the freedom of the press and a potential for abuse against political adversaries. It also condemns secret laws and courts (implying the FISA courts, of course) as illegal. (pp17, §§6)

It goes on to recommend to member states to stop participating in such dragnet programmes and to defend their sovereignty. It also calls on the European Union to suspend operations of Safe Harbour pending investigation of its safety features (pp20, §§28) and for suspension of data flows towards Canada and New Zealand (p22 §39), as it has already named them as members of Five Eyes (p12 §AC). There is even the suggestion of creating an EU based cloud storage service to remove the requirement of storing personal information in third party servers which are not subject to EU legal requirements (p24 §§53).

At page 26, paragraphs 74-76 there is a discussion about the chilling effects on journalists by the state actions, referring specifically to David Miranda’s detention by the UK government, calling it a direct violation of human rights, applying the same characterization to the destruction of The Guardian’s electronic archive

Finally, it goes on to note the detrimental effect this story has had on the trust between US and EU (p30, §96) as well as within the EU, given the participation of EU member states in dragnet surveillance programmes (p31 §107). It also notes how “some” member states have pursued bilateral agreements which is contrary to the requirement of member states to observe the interests of the EU as a whole (p32 §108).

I highly recommend reading the whole thing. Try and see past the somewhat dry language, since the ideas exposed are interesting.

It is quite interesting to note how many times it is mentioned that the investigation has been triggered and based on a large degree to the documentation offered by Edward Snowden and the reporting of Glenn Greenwald and others. It is encouraging to see proof that the personal sacrifice of Mr. Snowden has not been in vain and processes have been put in motion for remedying the situation between the EU and US. Of course, it is currently not easy to consider this nothing more than a set of recommendations and diplomatic language - but that is enough to show that the relationships across the Atlantic have been strained.

Noteworthy is also the fact that this report has not been covered by the media, at least in Greece. There are some actionable items recommended by the committee which will put every state that complies into a position to defend its citizens’ privacy and armour itself in the communications space. I am surprised that no political action has been undertaken as a result of this, neither by the Greek government nor by any pressure group such as the Greek DPA. I plan to ask and report back on the responses.

I would like to thank Ryan J. Gallaher for his article on this same report that gave me the inspiration to provide my own analysis.