Tag Archives: extraterritoriality

The Rapporteur for the EU Data Protection Regulation in the European Parliament, MEP Jan Philipp Albrecht, relesead today a concise and clear opinion on the link between US Surveillance leaks and the ongoing reform process of the EU data protection reform.

Among other comments, he also underlined that “The leaks hit the public in the middle of ongoing negotiations and debates in the European Parliament on the Data Protection Regulation. The draft of this regulation, sent in November 2011 by Justice Commissioner Viviane Reding to her colleagues, already contained a provision that would make it a condition for the disclosure of user data to authorities in third countries to have a legal foundation such as a mutual legal assistance agreement and an authorisation by the competent data protection authority.This Article disappeared after strong lobbying from the US administration, and only a very weak Recital remained.” Which is a valid point. You can read all of his statement HERE.

My problem with this debate in general is that, legally speaking, if the state in this mass surveillance revelations were a EU member state, and not the US, we (EU citizens) could have little to argue against it based on current (and future, for that matter) EU law. Article 3(2) of Directive 95/46 on the protection of personal data states that:

2. This Directive shall not apply to the processing of personal data:

– in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law.

A similar provision exists in the proposed draft Regulation, at art. 2:

This Regulation does not apply to the processing of personal data:
(a) in the course of an activity which falls outside the scope of Union law, in particular concerning national security;

You could argue that Directive 95/46 is the framework Directive (applying only on matters which used to fall under the former first pillar of the communities) and that in criminal law matters (the former third pillar) the current EU legal framework is defined by Council Framework Decision 2008/977/JHA. And indeed this is true. However, the material scope of the Decision is defined as follows, in art. 1:

4. This Framework Decision is without prejudice to essential national security interests and specific intelligence activities in the field of national security.

And if you think that in the proposed directive for data processing in criminal matters, which will replace the framework decision, the national security rule is sweetened in favor of the data subject with additional safeguards, think again (and read art. 2):

3.           This Directive shall not apply to the processing of personal data:

(a)     in the course of an activity which falls outside the scope of Union law, in particular concerning national security;

But, you would say, these are only secondary sources of EU law. We could look higher for protection. We have a fundamental right to private life and a fundamental right to the protection of personal data, guaranteed in the European Charter of Fundamental Rights, which from December 1, 2009, has binding effect on the EU Member States. That is also true. However, the scope of the Charter, according to art. 51, is limited to situations in which Member States are implementing Union law (such as transposing a directive, applying the resulted national law, or applying a regulation). Moreover, to make things clearer,  art. 51(2) provides that “this Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties”. And national security measures of a Member State are definitely outside the powers of the EU. So, even if the institutional system of the EU goes upside down and we would be able to file complaints directly to the Court of Justice of the European Union, as individuals, the Court would have little to say about the conformity of such surveillance practices with the Charter.

What to do then? We should leave the EU system of protection and look towards the one created by the Council of Europe. Article 8 of the European Convention on Human Rights protects the right to respect for private life. However, Article 8(2) states that:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The national security exemption, all over again. But don’t get too disappointed. The ECHR, at least from what I’ve read in their up to date case-law on Article 8, would never find mass surveillance a proportionate measure, and hence would never declare it as necessary in a democratic society. In fact, there are several decisions made by the ECHR against CoE member states in the context of their intelligence activity and its clash with art. 8 of the Convention (see, for instance, Rotaru v. Romania).

Great. But how could you get your case in front of the ECHR? First, you would have to file a complaint against the institution which breaches your fundamental right to private life in one of your national courts, basing your claim in a national provision. Only if your national court does not give a favorable decision, and after that you exhaust all the national judicial review possibilities, you would be able to go to the ECHR and complain that your state has not respected your fundamental right to private life. If the ECHR finds in your favor, then you would probably be compensated with an amount of money (which usually does not exceed 10.000 euro). But that would only be your individual case. There are no class cases before the ECHR. And there is no competence of the ECHR to invalidate a national law. A change in the national law could happen only if the state will want to make it. Thus, it is difficult to predict whether it would happen or not. And the whole process I described usually lasts several years (4-5-6). 

Oh, remember, the whole analysis from above was made considering the state with mass surveillance habits is a member of EU and a member of CoE! If it is a third country and if it operates trough legal persons under its own jurisdiction and while only your data find themselves in an extraterritorial position, then, legally speaking, your actual actions are most likely “frozen”.  {This is why clouds must be approached by themselves, from a regulatory perspective, establishing their own architecture as a territory to be subject to a certain law. But even if such an idealistic thing would happen, national security (just like that, without further safeguards or proportionality provisions) is always an exception. The analysis we went through together showed that this kind of mass surveillance can be sanctioned only for not being proportional with the aim it pursues. But for that to happen, we would need a court to decide so. A recognized court by all the parties involved, which can make enforceable decisions in such a context. Global governance sounds all of a sudden more interesting and ever closer to you, doesn’t it?}

A comment

It is important to note that the national security exemptions in data protection law, as long as the intrusions are proportionate and necessary in a democratic society, are accepted by the people as part of their social contract with their state. What makes the people (at least in Europe) uncomfortable about the whole Prism story is that the processing of their data under the national security exemption is performed by a state with whom they do not have a social contract. What are they getting back in exchange for their privacy? They look at their “states” for protection (by which I mean the national state and EU), but which are the mechanisms for their states to afford such a protection in the international law paradigm?

Conclusion? 

Should the national security exemption be reconsidered, especially with regard to surveillance? Should it be made subject to safeguards such as proportionality embedded in the law? Is that too dangerous? Or is that necessary to protect personal freedom? Should such rules be constitutionalized? And if so, at what level should them be constitutionalized? And which court or which other mechanism should safeguard its “constitutionality”? I think this can be the effective part of the debate we should have after the recent developments. And we should also work on finding better questions to answer within this debate.

(Source of the photo: http://3.bp.blogspot.com)