US-EU free trade deal could be collateral damage of latest NSA allegations

So we wondered what the big story of the European Council would be. Now we have the answer: Merkel’s cell phone. Der Spiegel today alleged that Merkel's phone may have been targeted by US security services. Merkel called President Obama to make clear that she "unequivocally condemns such practices” and was told that the US is not monitoring and will not monitor her communications (which as German media commentators have identified leaves open the possibility that this could have taken place in the past). The US Ambassador in Berlin was also summoned for a dressing down which follows similar action taken in France over allegations the US also spied on French diplomats.

Because this issue has been hyped-up by the media, this has the potential to be more damaging to Anglo-Saxon-Continental relations than arguably any other episode since the Iraq war - and there are lots of things going on here.

Civil liberties vs. security: As ever, this encapsulates the very sensitive trade-off between the obligation of the state to ensure the security of its citizens and the right of the citizens not to have the state arbitrarily snooping in their business. The Germans – given the painful memory of Stasi and Nazi surveillance – are particularly sensitive to this (and that the German Chancellor herself is the alleged victim adds fuel to the fire). Forget everything else on the agenda of the EU summit today, this is what really is creating the headlines in Germany.

Data protection - EU vs national: Some EU leaders and politicians - including Justice Commissioner Vivianne Reding (for whom this issue is like ideological steroids) are keen to use the long planned overhaul of EU data protection rules to enforce greater EU-level safeguards, though the link to the tapping of Merkel's phone isn't entirely clear. France and Poland are reportedly keen on fast-tracking this issue through the EU legislative process while others including the UK and Scandinavian countries countries are less keen. Germany has not committed itself either way (although German Interior Minister Freidrich said the current version would have to be revised).

The UK vs France: However, the same Data Protection Directive that France wants to pass also featured in the recent UK business taskforce report as an example of EU rules which hurt innovation and growth, and argument echoed by Rohan Silva in today’s Times. Medical research charities have also warned that the new rules - specifically a series of amendments tabled by the Green MEP Jan Philip Albrecht - could starve them of the data they need to work on new treatments. So this issue might also indirectly pit the UK versus France.

Germany vs. the Anglo-Saxon world: This is a critical one - any souring of relations between the US and Germany is bad news, and the UK could well be implicated by association (remember Tempora). The thing to watch out for will be the impact on the EU-US free trade deal currently under negotiation (TTIP) as Germany could now well insist on various complicated privacy safeguards and guarantees which Obama will have hard time delivering (not least since getting a deal past Congress perceived as undermining national security could prove very tricky). If TTIP were to fail, it would embolden those claiming that the UK needs to leave the EU to maximise global trading opportunities,

This is also putting Cameron in a very awkward position as he doesn't want to offend either the Germans or the US - but he'll most certainly be pressed on taking a position.

Secondly, the European Parliament – which also needs to approve the final deal – may see an opportunity here to hijack TTIP to exert its own power. The EP has form on privacy and civil liberty issues, as seen by its attempt to take SWIFT hostage. In fact, SWIFT itself could be complicated by the accusations against the US (we’re not saying that the EP doesn't have any valid arguments in this area).

So this is an episode that most certainly will reverberate for quite some time.

Germans stick to their guns on data retention

As we've noted before, the Germans take privacy and civil liberties seriously, and have refused to implement the EU's Data Retention Directive (the first part of the Directive was meant to have been implemented in 2007 the second part in 2009). There's a lot of history here. Two years ago, the German Constitutional Court ruled the implementing law of the Directive unconstitutional, which in turn triggered the current stalemate.

As the Germans continue to drag their feet, the European Commission has now proposed that the ECJ impose a daily penalty of €315,037 on Germany until it implements the Directive. However, Süddeutsche reports that the liberal FDP Justice Minister Sabine Leutheusser-Schnarrenberger is sticking to her guns and is still refusing to implement the law - something which is increasingly straining relations within the German ruling coalition, with CDU/CSU MPs, and CSU Interior Minister Hans-Pieter Friedrich in particular, less keen to make a stand on the issue than the FDP.

This is becoming a very interesting test case for a potentially new-found German assertiveness in Europe, though it's not alone on this on this one. Sweden, Austria and Romania have gone into this Directive kicking and screaming, but it's definitely Germany that is offering the most resistance at the moment. More widely, of course, this is an interesting example of an EU member state unilaterally refusing to accept an EU law what it goes against the country's fundamental political and constitutional settlement.

A useful lesson as to why the EU shouldn't decide who has access to our phone and internet records

So, the Coalition seems to have backed down on imposing new powers over internet surveillance, opting for a 'consultation' on draft plans, rather than pushing for a full Bill.

Although the exact proposals remain unclear, the Coalition seemed to be gearing up to extend the current rules on the retention of and access to communications data (the destination of phone calls, emails and websites visited, but not their content, is already recorded and stored for 12 months by UK law).

So what's the EU angle, because invariably there is one?

The requirement for service providers to retain this data are laid down in the EU's 2006 Data Retention Directive. We looked at the Directive and various other surveillance-type EU proposals in this report in 2009. But it should be noted that the previous UK Government was a co-sponsor of the initial EU proposal when it was first tabled in 2004 and, following the 2005 London bombings, was a strong supporter of the rules.

The Coalition's new proposals, which it seems likely to continue pushing after this storm has died down, would use additional UK legislation to extend the data collected to cover contacts made via social networking, and potentially even online video games. But, arguably the most controversial proposal is to allow intelligence officers to access emails, calls and texts as they happen in 'real time', without a warrant, rather than retrospectively.

This all goes beyond the current EU Data Retention Directive, which is basically limited to the retention of data on landline calls, mobile calls, emails and web history. The current Directive also leaves it up to member states to decide how and when law enforcement authorities can gain access to this data. So don't blame the EU in other words.

But this is not necessarily the end of the story. The European Commission plans to make a proposal for an amended Data Retention Directive this year.

And crucially, the Commission's 2011 evaluation of the current Directive stated that:

The Commission will assess the need for, and options for achieving, a greater degree of harmonisation with respect to the authorities having and the procedure for obtaining access to retained data. Options might include more clearly defined lists of competent authorities, independent and/or judicial oversight of requests for data and a minimum standard of procedures for operators to allow access to competent authorities.

In other words, law enforcement authorities' access to retained communications data could be something that will be regulated by the EU in future, if the Commission opts for this approach and gets support from member states and MEPs.

What this would mean for the UK in practice is not entirely clear because the UK is often rather more keen on state snooping than other EU states (e.g. Germany, which doesn't implement the original directive after its Constitutional Court struck it down). It is therefore unlikely that the EU minimum standard for law enforcement access to data would go beyond current UK practice or what the Coalition is trying to do in future.

However, this week's media storm over how much access the state has to our personal data shows that the principle of allowing the EU to determine which authorities have access to our personal data, and when, could create huge political issues in the future. How would politicians like to tell their voters that in fact it is the EU that decides on who and how police forces can access their data?

One thing that this week has surely taught us is that this is something that should be decided nationally, where if the one government decides to make authoritarian assaults on civil liberties they can at least be overturned by future governments or rethought due to public pressure. Not so once an EU directive is in place and it requires the re-opening and successful conclusion of negotiations between 27 member states and 736 MEPs.

It will interesting to see, following this week's storm in Britain, what the Commission will propose.

Coalition rope pulling - the European Arrest Warrant

Yesterday's news that a British man has been served with a European Arrest Warrant (EAW) in a high profile case he was cleared of by a Portuguese court in 1995 has again raised the issue of the malfunctioning European Arrest Warrant (EAW).

The problems with the EAW are well documented and mostly flow from the flawed assumption that all European justice systems are broadly of the same quality and tradition - the reality is that they differ - as well as an absence of civil liberties checks and a proportionality principle, some hand down better justice than others.

That being the case, there is a need for stronger safeguards before the UK hands over its own citizens to other countries. Reform has been spoken of for years (the need for it even admitted by the European Commission) so why the muted British response? As with much of the Government's programme it comes down to internal Coalition horse-trading. Here is how the parties stack up:

Conservatives:

• As a backbench MP, David Cameron described the EAW "highly objectionable":

"I find the European arrest warrant highly objectionable because of the problem of dual criminality... let us be clear about what it means. One of our constituents goes to Spain on holiday, commits an alleged offence, and returns home. All that is necessary for him or her to return is that the warrant is correctly filled out… and that a district judge in the UK sees the warrant and judges that the offence falls into one of the 32 categories. At no time is it asked whether the offence is a crime in this country."

• 102 Conservative MPs backed the conclusions of Open Europe's recent report which argued for the block repatriation of EU powers on crime and policing, with the option of opting back in to selected measures.

• Conservative MPs and MEPs have long campaigned for reform of the EAW. Conservative MPs, including David Cameron, voted against the EAW in the House of Commons and made EAW-reform a part of their last European Parliament Election Campaign saying “Conservative MEPs will uphold civil rights, and will work to avoid a repeat of the lack of safeguards in the European Arrest Warrant.”

Liberal Democrats:

The issue of the EAW cuts across two Liberal Democrat core beliefs; a commitment to European co-operation and Civil Liberties.

• Nick Clegg recently defended the EAW as "indispensable" though also admitting that it needed reform.
• Liberal Democrat MEPs helped to shape the EAW in the European Parliament; Sir Graham Watson MEP was the Parliament's rapporteur (Nich Clegg and Chris Huhne were both MEPs at the time)
• Ed Davey, now a Business Minister (then Lid Dem Europe's spokesman) was keen on the EAW at the time of the Lisbon Treaty debates, arguing the Conservatives wished to create a “Costa del Crime”.
• Curiously Nick Clegg has also championed reform of other extradition arrangements, such as the US/UK extradition treaty calling it "lopsided and unfair".
• In fairness, Lib Dems have also called for reform of the EAW, with MEP Baroness Ludford highlightingd the EAW's problems (she is also a patron of Fair Trials International).

So what will happen when a decision is forced on the Coalition in 2014?

As we have highlighted in a recent report, under the Lisbon Treaty, the UK will have to decide by 2014 whether to accept the jurisdiction of the European Court of Justice (ECJ) over the EAW and 130 other EU Crime and Policing measures. At this point (or preferably before) the Coalition will have to decide whether it wants the ECJ to have permanent jurisdiction over an unreformed EAW or leave the EAW altogether.

The Conservatives and Liberal Democrats have long held opposing views on the EAW that will be difficult to climb down from and make the collective decision very tough. In the end it is likely the loudest voice will prevail - and this could well turn into a loud and noise debate.

But perhaps there is another way forwards. There is a growing consensus that the EAW and extradition laws generally need to be reformed, something the Liberal Democrats recognise with regards to the UK/US extradition treaty when the wider issue of Europe is not at stake. It should therefore be possible to find a middle ground. This would be for the Coalition to opt out of ECJ jurisdiction over the unreformed EAW and argue for reform in order to make it possible to rejoin it later. For this to happen it would be best to make the decision now in order that the substantive negotiation is completed in time for 2014.

Internal coalition disagreements aside, surely this is an area where all sides stand to gain from EU reform?

"But we have a Foreign Office..."

Now the EU has its own Foreign Office, under the stewardship of Cathy Ashton, what's next on the Commission's list for EU institution building?

Well, today we got an advance warning from the Commission's counter-terrorism director, Olivier Luyckx. He has told MEPs that the EU needs its own internal security agency to "mirror" Ashton's External Action Service. It would pull together the EU's existing security agencies Cepol, Cosi, Eurojust, Europol and Frontex under EU counter-terrorism co-ordinator Gilles de Kerchove.

"There is new room for action at EU level," he said. "This is how I see the change: to set up a system that would mirror the one that is being set up for monitoring external crises [in the EEAS], a one-stop shop for information-sharing."

Austrian counter-terrorism chief Peter Gridling went one step further, saying, "It is time to ask ourselves this question: 'Is it realistic to start thinking about a future EU intelligence service?' I think it's realistic to start thinking about it."

We looked at the EU's growing penchant for data and intelligence sharing back in 2009 and warned that the creation of an EU 'home office' was on the horizon. It's apparently approaching faster than we thought.

The question is, where does the British Government stand on this? It has traditionally been at the forefront of EU counter-terrorism initiatives (e.g. European Arrest Warrant, DNA data sharing), despite the threats to civil liberties, and, so far, this Coalition has been no better. It has continued to opt in to new EU justice and home affairs laws at an alarming rate and looks set to opt in to another, on the sharing of airline passenger data, in the next week or so.

So, keep an eye on this. The UK Government has got form here.

This Government cannot be trusted on EU crime and policing

The torrent of EU justice, police and immigration laws keeps on coming and the Government keeps on signing up to them.

Home Office Minister James Brokenshire today told the House of Commons that the UK has opted in to the EU's cyber-crime directive. Now leaving aside the merits or drawbacks of the new law in question, this decision demonstrates the complete lack of democratic accountability that we've been highlighting over the past weeks and why we've been pushing for MPs and the public to be given more power under the EU Bill.

Not only did MPs not get to vote on whether the UK should sign up to this particular directive, the Government broke the European Scrutiny Committee's 'scrutiny reserve' to do so. MPs on the ESC considered the proposal late last year but did not clear it because they felt there were still questions for Ministers to answer about the plans. The directive sets "a maximum term of imprisonment of at least five years" for certain cyber-crime offences.

But there is another technical but hugely significant point. We've explained before that in 2014 the UK has the right to opt out of around 90-100 EU policing laws that came into force before the Lisbon Treaty took effect. On the other hand, if the Government decides to remain opted in, these laws will fall under the full jurisdiction of the European Court of Justice for the first time. The Government has said it will put this hugely important decision to a vote in both Houses of Parliament - something that we welcome.

However, the directive the Government opted in to today 'repeals and replaces' a pre-Lisbon law, meaning that there is now one less EU law the UK can opt out of in 2014. It also means that the Government has today handed jurisdiction over the area of cyber-crime from the UK courts to the ECJ. And all without Parliamentary debate or approval.

The Minister said that by giving an oral statement to the House he was acting in the spirit of Parliamentary scrutiny but this is, quite frankly, nonsense. What use is scrutiny after the event? The Government has made a decision and there's nothing anyone can do about it. Today's statement was just to put that fact on record.

Last month, Europe Minister David Lidington made a statement committing the Government to observe Parliamentary scrutiny and give MPs more opportunity to have a say on EU justice and home affairs opt ins. On today's evidence it doesn't seem the Home Office got the message.

To make matters worse, the Government also looks set to opt in to the EU's plans to make the telephone numbers, addresses, credit card numbers, email and other details of British air travellers available on demand to police forces across Europe. The Commission's current proposal covers flights between EU and third countries but, not satisfied with this, the Coalition wants the proposal stretched further to cover data collected on all flights within the EU as well.

MPs have again been sidelined and the Government is fast losing any trust that Lidington has been seeking to build on this issue.

The rise of the EU's surveillance state

We've written an article for the Guardian's Comment is Free looking at the themes in our latest report on the EU's surveillance state and the Government's complicit role in its rise.

Click the link below to have a read:
http://www.guardian.co.uk/commentisfree/libertycentral/2009/nov/02/europe-surveillance-state

EU're (sorry - couldn't resist) being watched

We've published a new briefing today, called "How the EU is watching you: the rise of Europe's surveillance state", looking at the growing impact the EU is having on civil liberties. Click here to read the press release.

There are lots of juicy proposals in the pipeline including: a target to train a third of all police officers across the EU in a “common culture” of policing; the mass collection and sharing of personal data including DNA records into an EU-wide database; controversial surveillance techniques including ‘cyber patrols’; the creation of a fledgling ‘EU Home Office’ with powers to decide on cooperation on police, border, immigration and criminal justice issues; an EU “master plan” on information exchange; the transfer of criminal proceedings among EU member states; a three-fold increase in the number of controversial EU arrest warrants; access to other member states’ national tax databases; and EU laws on citizens’ right to internet access.

The Lisbon Treaty's ratification, which is looking increasingly imminent, will see the amount and scope of EU justice and home affairs legislation increase further. National governments will lose their veto, while the European Court of Justice will be given the power to overrule national courts in this area for the first time.

It is however also important to understand the role the UK Government has played in the growth of the EU's policies in this field. It was the UK, for instance, that pushed the EU's Data Retention Directive, which requires telecoms companies to store information regarding every phone call we make, or text message and email we send.

I guess the EU and the Government could argue they are finally "listening to" their citizens, but this isn't quite what we had in mind.

MEPs to the rescue?

We learn today that the Government is proposing a tougher stance on internet file-sharing, which would include cutting off repeat offenders from the net. A Department of Business, Innovation and Skills press release said that:

"This would involve an obligation on Internet Service Providers (ISPs) to take action against individual, repeat infringers - for example by blocking access to download sites, reducing broadband speeds, or by temporarily suspending the individual’s Internet account."

The proposals do not seem to require any judicial decision before punishing internet users. Since when was this OK?

One leading ISP said that they were in favour of tackling illegal file-sharing but that, "This is best done by making sure there are legal alternatives and educating people, writing letters to alleged file-sharers and, if necessary, taking them to court."

There are also concerns that the method of identifying offenders using the IP address of a specific computer may unfairly punish those who share a web connection.

All of this sounds a bit familiar. A French law proposed by President Sarkozy (the one with the pop star wife whose music is doubtless being downloaded by millions of young pirates) is currently being held up somewhere in the legislative machine, following a ruling from the country's constitutional court which found that any removal of internet access would have to be decided by a judge, and not by the proposed 'Hadopi' authority.

Interestingly enough this is also the view of the European Parliament, which is holding the EU's entire telecoms package hostage over the issue. MEPs frantically introduced an amendment guaranteeing the need for a judicial decision before internet access could be cut. Member states were unwilling to accept the amendment and as a result the whole package will now be subject to lengthy negotiations, which will probably last the year.

Now, regular readers will know we're probably not the world's biggest fans of the European Parliament, but it seems that faced with the very disconcerting trajectory our Government appears to be on, we may be forced to rely on it to safeguard our civil liberties and the basic tenet of UK law: that you're innocent until proven guilty in a court of law.