European Parliament Asks EU Member States – Again – To Reign in Electronic Surveillance

In April 2014, the European Parliament adopted a resolution calling for European Member States, as well as the US, to bring surveillance laws and practices in line with human rights standards. The Parliament’s resolution was based on an inquiry led by MEP Claude Moraes in the Parliament’s Civil Liberties (LIBE) Committee, in the wake of the Snowden revelations.

Today, the European Parliament voted on a resolution following up on that inquiry, repeating the call for reforms. The resolution echoes what Niels Muiznieks, Council of Europe Commissioner (CoE) for Human Rights, said this week in his New York Times opinion piece ‘Europe is Spying on You’. The article is a survey and a critique of moves by several European countries to expand electronic surveillance capabilities and create new legal bases for conducting bulk data collection and interception.

The list of European countries taking these steps includes France, United Kingdom, the Netherlands, Germany, Finland, and Austria. The European Parliament resolution calls particular attention to the French and UK legislative proposals. Like Mr. Muiznieks, the Parliament expresses concern that European legislators seem to have ignored the 2014 ruling by the Court of Justice of the EU which declared the European Data Retention Directive invalid because of the indiscriminate nature of data collection it mandated.

The resolution also includes statements on the importance of effective and efficient Mutual Legal Assistance Treaties (MLATs) and calls on the EU and the US to swiftly conclude ongoing review of the EU-US MLAT. The relevance of this request is illustrated by the continuing uncertainty about conditions for law enforcement access to personal data across borders, as evidenced by the ongoing court case involving US law enforcement requests for data held in Ireland.

Governments must tread carefully and avoid pushing for removal of content that, while perhaps controversial, does not violate the law.

The Parliament resolution welcomes efforts by technology and Internet companies to provide enhanced transparency to users about government demands to access to data and to implement end-to-end encryption in response to surveillance concerns. Further, it restates the fact that current EU law does not permit Member States to impose general monitoring obligations on Internet intermediaries. This is a helpful reminder at a time when there is increasing pressure on companies to assist authorities in limiting access to various types of illegal content or content that is merely considered undesirable. Governments must tread carefully and avoid pushing for removal of content that, while perhaps controversial, does not violate the law. Internet companies should not be called on to conduct any form of censorship on behalf of governments.

The European institutions have no authority on matters of national security, and the resolution has no legal effect. However, it is right for the Parliament to keep calling attention to the need to reform government surveillance – and the abject failure of European countries to do this. It is worth noting that the resolution calls on the Secretary General of the Council of Europe to launch the ‘Article 52 Procedure’. This procedure enables the Secretary General to request an explanation from any CoE member country to furnish an “explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention.” Such an inquiry procedure could be used to challenge surveillance practices by asking governments to explain how these practices comply with the European Convention on Human Rights.