The legal framework in which enforcement agencies try to gather and collect vital intelligence data is “very difficult and in some cases impossible,” UK Home Secretary Charles Clarke told MEP s in Strasburg today.
He urged the European Parliament to support plans for EU laws on the retention of telecommunications data, updating the Schengen Information System (which allows citizens from participating Member States to travel throughout those states without checks at internal borders) and in establishing a new Visa Information System.
Each of these proposals has faced criticism from civil liberties groups concerned that they herald the coming of a surveillance society.
But the political environment is changing, largely due to 9/11 and the Madrid and London bombings, and the UK Government, which holds the EU presidency until January, is determined to push the measures through.
Speaking in Strasbourg today, Charles Clarke warned MEPs that no country could tackle the problems of international crime, terrorism or international migration alone.
“The truth is that in each of these areas we will all, including within our own countries, achieve most by sharing experience, information and resources and by identifying, and then targeting, the threats systematically and consistently,” he said.
Given that criminals and terrorists use the internet and mobile communications, Clarke argued that we need to "know what they are communicating". But he sees human rights legislation as an obstacle that makes it difficult for law enforcement agencies to obtain the information needed to tackle the threats against our society effectively.
Clarke says agencies need to be able to access telecommunications data held by ISPs and telcos, or by the Schengen Information and Visa Information Systems. He also called for visas, passports, identity cards and driving licences to contain biometric data.
He countered criticism that civil liberties would be threatened by these measures by arguing that the right to privacy, the right to property, the right to free speech and the right to life are all under threat from criminals and terrorists.
“We have a duty and responsibility to help protect them for our citizens through practical measures,” said Clarke. “As we consider how best to do this there will always and inevitably be a balance in rights. What matters in each case is that the steps are proportionate and that protections against abuse are effective. I believe that our proposals offer that.”
He cited the retention of telecommunications data as an example.
Retention of data
The UK, France, Ireland and Sweden have been pushing for a Framework Decision on the retention of communications data for over a year.
This is the data that identifies the caller and the means of communication (e.g. subscriber details, billing data, email logs, personal details of customers and records showing the location where mobile phone calls were made) but not the content of the communications.
The draft Framework Decision allows Member States to opt-out if they do not find the purposes behind the draft sufficient to make the retention acceptable.
The draft, as amended by the former Dutch presidency of the EU, proposes a minimum period of data retention of 12 months and leaves any maximum limit to the discretion of Member States.
Provisions are also made for the access by one Member State to data retained by another Member State. Data protection safeguards are included, and there is an obligation on each Member State to ensure the security of the data retained.
But these proposals were rejected by the European Parliament in June, while the Commission is due to publish its own proposals on 21st September.
A leaked copy of the Commission's own draft Directive indicates that it is seeking shorter data retention periods than the draft Framework Decision: maximums of one year for data from phone calls and six months for internet-related communications data.
The UK already has legislation in place allowing the retention of and access to telecommuncations data and, according to Charles Clarke, it “is proving invaluable in the current investigations into the London attacks and in many cases in the UK it has proved essential to solving crimes often months after they were committed.”
The legislation generally targets data already collected by a company for business purposes and, according to the Home Secretary, is not excessively costly. He cited a UK partnership project set up with a service provider to retain data for up to 12 months. This cost €1.2 million which he described as an acceptable sum when compared to the average cost of €0.5 million for the forensic work on a single murder case.
“There is perhaps a more general concern that the proposal is an unnecessary invasion into privacy or that it is disproportionate,” he acknowledged, but explained that he considers this concern misplaced because, in many cases, “the victim’s right to justice was only achieved through the retention of telecommunications data.”
More details of the Home Secretary’s arguments are set out in a paper entitled “Liberty and Security: Striking the Right Balance.” It was not available at the time of writing.
Civil liberties concerns
Measures such as the data retention proposals, biometrics and the Schengen Information System will enhance the sharing of information rather than unnecessarily invade privacy, said the Home Secretary,. However, he conceded the need for a clear legal basis and safeguards for each measure.
The Home Secretary then called for a careful look at the way courts are interpreting the European Convention on Human Rights. He explained:
“Our strengthening of human rights needs to acknowledge a truth which we should all accept, that the right to be protected from torture and ill-treatment must be considered side by side with the right to be protected from the death and destruction caused by indiscriminate terrorism, sometimes caused, instigated or fomented by nationals from countries outside the EU.
“This is a difficult balance to get right and it requires us all as politicians to ask where our citizens – who elected all of us here – would expect us to draw the line.”
According to Bloomberg.com, Clarke told reporters yesterday that if judges did not begin to change this balance “then the conclusion will be that politicians such as myself will say OK, we've got to have a change in the regime.''
He promised to discuss the matter in a meeting of European Council Ministers, due to take place in Newcastle later this week.
Commission response
Franco Frattini, the Commissioner for Justice, Freedom and Security, also speaking today before the European Parliament, welcomed the Home Secretary’s determination to fight terrorism, but cautioned against any erosion of civil liberties.
“We should never be tired to repeat that when working on security we have to keep a balance between law enforcement activities and the protection of other fundamental rights,” he said. “And we have to balance prosecution activities and privacy."
He said that the proposal on data retention will be considered together with data protection in October.
He warned that at the moment there are 25 different data retention regimes within the EU and stressed:
“The key concept is the assurance that only for specific objectives (the fight against terrorism and organised crime) and under the supervision of independent authorities, such as the judiciary, will data be processed for a definite period of time.”
According to Reuters, Graham Watson, leader of the Alliance of Liberals and Democrats in the European Parliament, pointed out that freedom and security are not alternatives. “Much as the public may dislike it, suspected terrorists have rights," he said.
