During Israel’s latest onslaught against the Gaza Strip in November 2012, a major conference was held in Tel Aviv: the 2nd Israel HLS International Conference. Among the most prominent sponsors of the homeland security event were two of Israel’s largest weapons companies, Elbit Systems and Israel Aerospace Industries (IAI), both of which cooperate closely with the Israeli military. But the conference also had another grandiosely advertised partner: the European Commission.
As is often the case, this undisguised cooperation between the EU and Israeli military companies went fully unchallenged – let alone noticed – in the European media. Not even the rather conspicuous fact that the EU-sponsored conference occurred simultaneously with Israel’s devastating Gaza assault in which Israel used the equipment of both Elbit and IAI.
The same inability, or unwillingness, by the European media to report such collaboration, let alone deplore it, manifested itself even more prominently in January 2009. A day after Israel’s 22-day long assault on the Gaza Strip, the leaders of six European states, including the UK, France, and Italy, arrived in Israel for a gala dinner, voicing their support for Israel. The dinner was hosted by Israel’s then-prime minister Ehud Olmert. The European leaders vowed, of all things, to stop the flow of arms to Hamas. Meanwhile, the Israeli strikes on Gaza would kill 926 civilians.
As a trading and co-sponsoring partner, Elbit is among the most disagreeable of all the Israeli military companies. Being at the very core of Israel’s breaches of international law, Elbit is deeply involved in Israel’s drone programs that have targeted and killed scores of civilians, including children. The former president and chief executive of Elbit proclaimed that the company is “the backbone” of Israel’s drone operations. Elbit also provides surveillance equipment to the illegal wall Israel has built in the West Bank. Besides being an instrumental partner of the Israeli air force, it also sells equipment to the Israeli navy.
The EU also funnels funds to Elbit through allocating EU-taxpayers’ money to the company under the umbrella of scientific research. Indeed, another barely publicized yet lucrative form of EU-Israeli cooperation that directly benefits Israel’s private military sector are scientific research subsidies. David Cronin, who has put together a pioneering compendium on the EU’s complicity in Israel’s illegalities, estimates that by the year 2013, Israel will have received EU research grants for more than €500 million. Israel currently takes part in over 800 schemes with European universities and corporations.
The massive EU-Israel bilateral trade remains one of the least talked about, yet among the most crucial enablers of Israel’s ever-continuing breaches of international law.
The EU is Israel’s main trading partner with a total annual trade of approximately €30 billion (€29.7 billion in 2012). The volume of the trade is more than ten times that of the US foreign aid to Israel. While it is reasonable to assume that US-Israeli relations will remain intact in the coming years, the EU has the required economical leverage and legal means to exert unprecedented pressure on Israel, compelling it to abide by international law.
According to a 2003 European Commission poll, 60 percent of the EU citizenry sees Israel as the greatest threat to world peace. In this respect, European public opinion is more informed than that in the US. Another factor that makes it feasible for EU to alter its policy towards Israel is that the EU-Israel Association Agreement that governs all trade and cooperation between the EU and Israel states that “[r]elations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles.”
Hence, whereas a drastic shift in the US-Israeli relations remains an unlikely scenario, the EU has both the informed public opinion required for, and a no-brainer legal case demanding, relatively swift and highly momentous changes.
As of now, however, the EU is both a major client for Israel’s occupation-powered, export-oriented and multi-billion military manufacturing and homeland security sector as well as a major exporter of military equipment to Israel.
Besides the military and homeland security imports from Israel, the EU also continues to violate its own regulations on arms exports. The EU Code of Conduct on Arms Exports states that the EU is “DETERMINED [sic] to prevent the export of equipment which might be used for internal repression or international aggression or contribute to regional instability.”
How determined exactly has the EU been in its adherence to this provision? Based on the criteria set out by the EU in the above regulation, Israel is an illegitimate country for arms exports. After all, in addition to violating a whole list of UN resolutions, Israel has been and remains exceptionally committed to violating international law.
Although Israel is an invalid trading partner according to the EU Code of Conduct regulations, the value of licenses granted by the EU over the past decade for arms exports to Israel amounts to billions of Euros.
Whereas 18 of 27 EU member states export military equipment to Israel, the bulk of the total EU exports originate from the major EU states: Italy, France, Germany and the UK, according to Amnesty International’s “Fuelling conflict: Foreign arms supplies to Israel/Gaza.”
In terms of violating EU arms exports regulations, Italy has the most abominable track record. Italy’s biggest defense contractor, Finmeccanica, announced in July 2012, that it had won and signed a $1 billion (€752 million) deal with Israel. Finmeccanica will provide training jets to the Israeli air force, which repeatedly carries out egregious attacks against Palestinian and Lebanese civilians and infrastructure.
Out of the total €752 million deal, the most sizable part belongs to Finmeccanica’s subsidiary Alenia Aermacchi which provides 30 M-346 advanced trainer aircraft to the Israeli air force. It is reported that the Italian government played a major role in brokering the contract.
Another EU member state that carries out large-scale military trade with Israel is France. Between 2003 and 2008, France exported more than €521 million worth of weaponry to Israel.
An Amnesty International report from February 2009 revealed that electrical components made in France were found in the rubble of buildings destroyed by the Israeli military during the 2008-2009 Gaza massacre. The components were installed in Hellfire AGM missiles manufactured by the US company Hellfire Systems, a joint venture of Lockheed Martin and Boeing. France also exported specialized equipment for reconnaissance, such as laser systems, to Israel.
Another major arms exporter to Israel is Germany. Germany sold major conventional weaponry to Israel for more than €580 million between 1996 and 2000, including Dolphin Class Submarines, which are assumed to be capable of launching nuclear warheads. In 2000 alone, German weapons trade with Israel was worth more than €130 million. Germany exported torpedoes, armored cars, and parts for the Israeli Merkava tanks used in occupied Palestine.
The UK also exports considerable amounts of military equipment to Israel. In 2009, after Israel had destroyed the Gaza Strip, the UK authorities granted export licenses for electronic warfare equipment, naval radars, and sniper rifles to Israel. In 2009, the then-Foreign and Commonwealth Secretary David Miliband revealed that the Israeli equipment used in Israel’s murderous and destructive assault against Gaza “almost certainly” contained components that had been delivered by the UK.
In recent years, the UK government has annually licensed arms exports directly to Israel for between €12 million and €36 million. In 2008, UK authorities granted military export licenses for more than €34 million.
Besides these major European powers, one state enjoys exceptional clout as a strict adherent to international law, but has excelled at conducting arms trade with Israel, namely Finland. The total value of the Finnish-Israeli arms trade is €200 million.
In addition to the fact the Finland has conducted more military trade with Israel than a number of much bigger EU member states, what sets Finland apart from all the other arms trading partners of Israel is the severity of domestic criticism the trade has elicited.
A petition signed by more than 250 Finnish dignitaries from the arts, academia, and politics is a telling indicator of the wave of criticism arising from the military trade between Israel and Finland. Among those calling for an immediate discontinuation of all forms of military trade with Israel are the foreign minister Erkki Tuomioja and world-renowned expert on international law Martti Koskenniemi.
It merits emphasis that the continuation and, often the mere existence, of the trade has arguably had no support in the Finnish mainstream media.
As the 2003 European Commission poll already revealed, the ever-continuing business-as-usual attitude by the EU to Israel’s actions fully contradicts union public opinion. The freezing of the EU-Israel Association Agreement and the seizing of all weapons exports from the EU to Israel – both actions required by EU provisions – could force Israel to finally recognize and respect the rights of the Palestinians.
- Brazil says no to Israeli arms (bdsmovement.net)
The European Commission has withdrawn its request to review ACTA’s compatibility with the EU law in the European Court of Justice. The move virtually ensures the treaty will never be adopted in the Union.
The European Comission’s move was reported by MEPs from the Socialists and Democrats alliance.
“I welcome this news from the Commission today,” said S&D Euro MP David Martin, the author of the parliamentary report on ACTA, as cited by The Register. “The EU cannot be party to an agreement without European Parliament ratification. MEPs overwhelmingly rejected ACTA in July and I am pleased that the Commission has acknowledged this is the end of the road for ACTA in the EU thanks to the Parliament.”
The European Commission made the appeal to the court in July, after ACTA (the Anti-Counterfeiting Trade Agreement) had received a knockout blow from the European Parliament. At the time MEPs roundly rejected the treaty with 478 votes against, and only 39 in favour.
Even before that, in February this year the adoption of ACTA was suspended due to mass protests against it, with critics slamming the agreement for its breaches of human rights, that it would protect copyright at the expense of freedom of speech on the Internet.
Intended as a global treaty, ACTA started to be developed in 2007 as a means to target copyright and patent violations in a wide range of industries. ACTA has been signed by the US, Australia, Canada, Japan, Morocco, New Zealand, Singapore, Mexico, South Korea and 22 EU member states.
Of all those countries, only Japan has ratified it so far. The treaty will come into force for the countries which ratified it when at least 5 more pass the relevant legislation.
A new project aimed at “countering illegal use of the Internet” is making headlines this week. The project, dubbed CleanIT, is funded by the European Commission (EC) to the tune of more than $400,000 and, it would appear, aims to eradicate the Internet of terrorism.
European Digital Rights, a Brussels-based organization consisting of 32 NGOs throughout Europe (and of which EFF is a member), has recently published a leaked draft document from CleanIT.
On the project’s website, its stated goal is to reduce the impact of the use of the Internet for “terrorist purposes” but “without affecting our online freedom.” While the goal may seem noble enough, the project actually contains a number of controversial proposals that will compel Internet intermediaries to police the Internet and most certainly will affect our online freedom. Let’s take a look at a few of the most controversial elements of the project.
Privatization of Law Enforcement
Under the guise of fighting ‘terrorist use of the Internet,’ the “CleanIT project,” led by the Dutch police, has developed a set of ‘detailed recommendations’ that will compel Internet companies to act as arbiters of what is “illegal” or “terrorist” uses of the Internet.
Specifically, the proposal suggests that “legislation must make clear Internet companies are obliged to try and detect to a reasonable degree … terrorist use of the infrastructure” and, even more troubling, “can be held responsible for not removing (user generated) content they host/have users posted on their platforms if they do not make reasonable effort in detection.”
EFF has always expressed concerns about relying upon intermediaries to police the Internet. As an organization, we believe in strong legal protections for intermediaries and as such, have often upheld the United States’ Communications Decency Act, Section 230 (CDA 230) as a positive example of intermediary protection. While even CDA 230’s protections do not extend to truly criminal activities, the definition of “terrorist” is, in this context, vague enough to raise alarm (see conclusion for more details).
Erosion of Legal Safeguards
The recommendations call for the easy removal of content from the Internet without following “more labour intensive and formal” procedures. They suggest new obligations that would compel Internet companies to hand over all necessary customer information for investigation of “terrorist use of the Internet.” This amounts to a serious erosion of legal safeguards. Under this regime, an online company must assert some vague notion of “terrorist use of the Internet,” and they will have carte blanche to bypass hard-won civil liberties protections.
The recommendations also suggest that knowingly providing hyperlinks to a site that hosts “terrorist content” will be defined as illegal. This would negatively impact a number of different actors, from academic researchers to journalists, and is a slap in the face to the principles of free expression and the free flow of knowledge.
Internet companies under the CleanIT regime would not only be allowed, but in fact obligated to store communications containing “terrorist content,” even when it has been removed from their platform, in order to supply the information to law enforcement agencies.
Material Support and Sanctions
The project also offers guidelines to governments, including the recommendation that governments start a “full review of existing national legislation” on reducing terrorist use of the Internet. This includes a reminder of Council Regulation (EC) No. 881/2002 (art. 1.2), which prohibits Internet services from being provided to designated terrorist entities such as Al Qaeda. It is worth noting that similar legislation exists in the US (see: 18 U.S.C. § 2339B) and has been widely criticized as criminalizing speech in the form of political advocacy.
The guidelines spell out how governments should implement filtering systems to block civil servants from any “illegal use of the Internet.”
Furthermore, governments’ criteria for purchasing policies and public grants will be tied to Internet companies’ track record for reducing the “terrorist use of the Internet.”
Notice and Take Action
Notice and take action policies allow law enforcement agencies (LEAs) to notify and act against Internet companies, who must remove “offending” content as fast as possible. This obligates LEAs to determine the extent to which content can be considered “offensive.” An LEA must “contextualize content and describe how it breaches national law.”
The leaked document contains recommendations that would require LEAs to, in some cases, send notice that access to content must be blocked, followed by notice that the domain registration must be ended. In other cases, sites’ security certificates would be downgraded.
Real Identity Policies
Under the CleanIT provisions, all network users, whether in social or professional networks, will be obligated to supply their real identities to service providers (including social networks), effectively destroying online anonymity, which EFF believes is crucial for protecting the safety and well-being of activists, whistle-blowers, victims of domestic violence, and many others (for more on that, see this excellent article from Geek Feminism). The Constitutional Court of South Korea found an Internet “real name” policy to be unconstitutional.
Under the provisions, companies can even require users to provide proof of their identity, and can store the contact information of users in order to provide it to LEAs in the case of an investigation into potential terrorist use of the Internet. The provisions will even require individuals to utilize a real image of him or herself, destroying decades of Internet culture (in addition to, of course, infringing on user privacy).
The plan also calls for semi-automated detection of “terrorist content.” While content would not automatically be removed, any searches for known terrorist organizations’ names, logos or other related content will be automatically detected. This will certainly inhibit research into anything remotely associated with what law enforcement might deem “terrorist content,” and would seriously hinder normal student inquiry into current events and history! In effect, all searches about terrorism might end up falling into an LEA’s view of terrorist propaganda.
LEA Access to User Content
The document recommends that, at the European level, browsers or operating systems should develop a reporting button of terrorist use of the Internet, and suggests governments draft legislation to make this reporting button compulsory for browser or operating systems.
Furthermore, the document recommends that judges, public prosecutors and (specialized) police officers be able to temporarily remove content that is being investigated.
Frighteningly, one matter up for discussion within the CleanIT provisions is the banning of languages that have not been mastered by “abuse specialists or abuse systems.” The current recommendation contained in the document would make the use of such languages “unacceptable and preferably technically impossible.”
With more than 200 commonly-used languages and more than 6,000 languages spoken globally, it seems highly unlikely that the abuse specialists or systems will expand beyond a select few. For the sake of comparison, Google Translate only works with 65 languages.
At a time when new initiatives to preserve endangered languages are taking advantage of new technologies, it seems shortsighted and even chauvinistic to consider limiting what languages can be used online.
What Is Terrorism, Anyway?
While the document states that the first reference for determining terrorist content will be UN/EU/national terrorist sanctions list, it seems that the provisions allow for a broader interpretation of “terrorism.” This is incredibly problematic in a multicultural environment; as the old adage goes, “one man’s terrorist is another man’s freedom fighter.” Even a comparison of the US and EU lists of designated terrorist entities shows discrepancies, and the recent controversy in the US around the de-listing of an Iranian group shows how political such decisions can be.
Overall, we see the CleanIT project as a misguided effort to introduce potentially endless censorship and surveillance that would effectively turn Internet companies into Internet cops. We are also disappointed in the European Commission for funding the project: Given the strong legal protections for free expression and privacy contained in the Charter of Fundamental Rights of the European Union [PDF], it’s imperative that any efforts to track down and prosecute terrorism must also protect fundamental rights. The CleanIT regime, on the other hand, clearly erodes these rights.
- EU proposal to stop terrorist sites even more ridiculous than it sounds (arstechnica.com)
- Leak shows EU’s plans for largescale surveillance of all communications (edri.org)
- Leaked Clean IT Document Is Frightening (webpronews.com)
- Police across Europe will “patrol” Facebook, Google and Twitter for postings supporting terrorism under an EU project says leaked report (familysurvivalprotocol.com)
The European Commission on Friday announced an extra 100 million euros in aid for water, sanitation, and refugees in the Occupied Palestinian territories.
There will also be an extra package of support to Palestinians living in the so-called Area C, which is under direct Israeli authority but where it is currently almost impossible for Palestinians and international donors to obtain building permits.
After the Israeli demolition there of community buildings and infrastructure such as rainwater cisterns, the EU’s new funding will provide training to build new infrastructure.
Additional funding for the United Nations refugee agency for Palestinians (UNWRA) will provide support on education, health, relief and social services for Palestine refugees in the West Bank, Gaza, Lebanon, Syria and Jordan.
The new funds brings European Union aid to the Palestinians this year to 200 million euros.
Israel has in the past angered European donors after destroying several costly, high-profile infrastructure projects in the Occupied Territories.
- Report: Israel urges US, EU to send funds to Ramallah (alethonews.wordpress.com)
- EU Missions Condemn Continuous Settlers Attacks against Palestinians (windowintopalestine.blogspot.com)
- Letters: The EU, Israel and occupied territories (guardian.co.uk)
Ahmad Dalloul in front of his destroyed factory in Tel-el-hawa
Mamoun Ahmad Dalloul (36) lives in Tel-el-hawa with his wife and 9 children. Until recently, he owned a dairy-products factory that produced milk, cheese and yoghurt. Since December 2008, Mamoun has re-built his factory 4 times after it was repeatedly targeted and destroyed by Israel’s forces. On 04 June 2012, at around 1:00, his factory was targeted and destroyed by Israel’s forces for the 5th time.
On the evening of the most recent attack, Mamoun received a call from his brother, who lives adjacent to the factory, informing him that the factory had been destroyed by a missile from an F16: “I rushed to my factory and, when I arrived, there were firefighters and police. The neighbors were panicking and standing in the streets. I was told that a missile had hit the factory and then penetrated 6 or 7 meters into the ground. There was something like an earthquake for 5 minutes, and then the missile exploded and pulled everything into the crater. I do not know what kind of missile it was.”
After 5 attacks on his factory, Mamoun is devastated: “The first time my factory was destroyed was in December 2008 during Operation Cast Lead. The factory was very big and on the ground floor of our residential apartment. I received a call from Israel’s forces, who told me that the building would be targeted in the next 15 minutes. My family and I fled immediately. 3 missiles were fired from an F16 and the building was completely destroyed. In just a few minutes, we lost everything. We were suddenly homeless and I had lost my only source of a livelihood.”
Mamoun and his family were forced to shuffle from one household to another, looking for a place to stay: “We would stay at my parents’ house for a few days then move to my brother-in-law’s house and spend a few more at my brother’s house. My son kept asking why we had no home. Finally, as my wife is a refugee, UNRWA built us a single residential unit. I then rebuilt my factory in Sabra, which is in central Gaza City. It was very small and modest because there was barely any construction material in Gaza, as well as money constraints. 6 months later, it was destroyed by Israel’s forces. I then partnered with someone else and tried to rebuild in a different location, but it was destroyed while we were still constructing.”
A crater made by the missile fired from an F16 on 04 June 2012
At this point, Mamoun had given up and decided to not rebuild his factory: “The first 2 times, I rebuilt because this is my only source of a livelihood. There are hardly any employment opportunities in Gaza. My factory provided work for 120 individuals, including my 3 brothers and my son. I saw how they were all suffering without work and thought that the factory would at least provide them with the income to support themselves and their families. I had enough after the 3rd attack, but a representative of the European Commission came to visit from Jerusalem and said they would mediate on my behalf. They promised that the factory would not be targeted again. Each time I bought new machines, they came and took pictures and reassured me all was well. I was encouraged by this and started to develop the factory slowly. Then, just like that, it was targeted and destroyed again. They did not keep their promise.”
Each attack has resulted in severe economic hardship for Mamoun and his family: “I have had to borrow money and my savings are almost depleted. I sold 2 pieces of my land to rebuild my factory. I even sold the house that UNRWA gave us to set up the factory and have a source of income. I can no longer sustain the expenses for my family. For a while, people would not even let me rent an apartment in their buildings, because they thought it would be targeted.”
Mamoun feels that his story is one of many that illustrate the suffering of Gaza: “There are people who are displaced and dying. I know what it feels like to be homeless. My children have had to grow up seeing dead people, war and destruction. They no longer even react to airstrikes, because this is what they are used to. My factory was a civilian establishment and I did not plan any resistance activities there. Why would I want to put my family in such danger? I am tired of this destruction. I have no future now. Why can’t we be left to live in peace and stability like other people in the world?”
The direct targeting of a civilian object constitutes a war crime, as codified in Article 8(2)(b)(ii) of the Rome Statute of the International Criminal Court. Similarly, under the Fourth Geneva Convention Article 53, the destruction of private property is prohibited unless rendered absolutely necessary by military operations. The destruction of such factories infringes upon human rights principles, including the right to work and right to attain an adequate standard of living contained in Article 11 of the International Covenant on Economic, Social and Cultural Rights.
- Owner of dairy factory hit by Israel urges world action (alethonews.wordpress.com)
- Israel Destroys EU Development Projects Worth €29 Million (altahrir.wordpress.com)
No sooner did a mandatory data retention law go into effect in Austria this month than thousands of Austrians banded together in a swift opposition campaign to overturn it. The Austrian law originated as the misshapen offspring of the 2006 European Data Retention Directive. Led by AK Vorrat Austria, a working group against mandatory data retention, the pushback against this mass-surveillance law demonstrates that opposition remains alive and well six years after the European Union adopted the infamous Directive.
The Austrian data retention law compels all ISPs and telcos operating in Austria to retain everyone’s incoming and outgoing phone numbers, IP addresses, location data, and other key telecom and Internet traffic data. The information is collected for all citizens, rather than just those suspected criminal activity. In many cases, the data is handed over to law enforcement.
Austrian activists took advantage of a two-year delay of the implementation of this ill-conceived Directive in their country by mapping out their opposition strategy in advance. They sought to leverage a two tier strategy to beat back the Data Retention Directive at the European level, and to fight against the Austrian data retention law at the national level.
One day before the law entered into force, Austrian activists organized funeral marches to protest this anti-privacy, anti-anonymity, anti-free expression law.
Now, just weeks after the Directive officially went into effect, its future hangs in the balance as a pair of efforts calling for its reversal speed toward Austria’s Constitutional Court. Austrian activists are seeking to overturn the legality of the Austrian law with a mass complaint filed with Austria’s Constitutional Court. With nearly 7,000 supporters formally signed on and 18,000 declaring their intent to join, that effort that is shaping up to be “the biggest complaint in the history of the republic,” according to European Digital Rights (EDRi), a coalition of 32 privacy and civil rights organizations working in the European Union, including EFF. AK Vorrat Austria initially announced that it hoped to bring 1,000 individuals together to sign onto the complaint – and surpassed that goal in two days’ time.
But activists aren’t stopping there. On a parallel track, AK Vorrat Austria has already gathered 100,000 signatures for a citizens’ initiative calling for their government to work towards the abolishment of the EU Directive. The signatures are enough to meet the required threshold to force the issue to be considered by the National Council, Austria’s legislative branch of government.
This isn’t the first time this Directive has sparked an uproar in Europe. When it first became clear that the EU was going to cave to governmental lobbying interests from the U.S. and UK and enact a sweeping law that would effectively legitimize mass surveillance, the Freedom not Fear movement responded with massive street protests in Germany and across Europe.
The opposition continues, and is only growing. Courts in Romania, Germany, and the Czech Republic have declared their national laws derived from the EU Directive to be unconstitutional, while a court in Ireland has referred a case to the European Court of Justice—the highest Court in Europe for matters related to European Union law—questioning the legality of the overall EU Data Retention Directive. The European Data Protection Supervisor Peter Hustinx has called the Directive “the most privacy-invasive instrument ever adopted by the EU in terms of scale and the number of people it affects.” Despite all this, the European Commission is still defending it even though it has not been able to provide any evidence that the Directive is necessary, and therefore legal, in the European Union.
Austrian Association for Internet users (VIBE!AT), the Ludwig Boltzmann Institute of Human Rights and several other Austrian activists are encouraging all concerned Austrians to join this fight. Austrians can join the mass complaint against the Austrian data retention law by filling out the declaration form by May 18, available at verfassungsklage.at.
Meanwhile, all Austrians age 16 and older should support the citizens’ initiative online at zeichnemit.at (in German) to call for the abolishment of the EU data retention directive. Take Action: Sign the citizens’ initiative now. Tell the Austrian government to fight for the repeal of the European Data Retention Directive in Brussels.
- ACTA in the EU: We Can’t Call it Dead Yet (alethonews.wordpress.com)
- European Data Retention Directive At Work: Polish Authorities Abuse Access to Users’ Data (eff.org)
This January 28 marks International Privacy Day, the day that the first legally binding international privacy treaty was opened for signature to Member States in January 28, 1981. Different countries around the world are celebrating this day with their own events. This year, we are honoring the day by calling attention to recent privacy threats around the world and describing a few of the available tools that allow individuals to protect their privacy and anonymity.
Today, we are calling on governments to repeal mandatory data retention schemes. Mandatory data retention harms individuals’ anonymity, which is crucial for whistle-blowers, investigators, journalists, and for political speech. It creates huge potential for abuse and should be rejected as a serious infringement on the rights and freedoms of all individuals.
It has been six years since the highly controversial Data Retention Directive (DRD) was adopted in the European Union. Conceived in the EU and steamrolled by powerful U.S. and U.K. government lobbies, this mass-surveillance law compels EU-based Internet service providers to collect and retain traffic data revealing who communicates with whom by email, phone, and SMS, including the duration of the communication and the locations of the users. This data is often made available to law enforcement. Europeans have widely criticized the DRD, and year after year, it has inspired some of the largest-ever street protests against excessive surveillance.
The European Commission has begun mounting a defense for this highly controversial mass-surveillance scheme, though they have thus far been unable to show that the DRD is necessary or proportionate. For the DRD to be legal in the EU, any limitation to the right to privacy mustbe “necessary” to achieve an objective of general interest and “proportionate” to the desired aim. This requirement is important to ensure that the government does not adopt severe measures to address a problem that could be otherwise solved in a way that is less harmful to civil liberties. But the Commission has been arguing that all uses of retained data illustrate that the Directive is “valuable.” This doesn’t meet the legal standard. Instead, the Commission should provide evidence that in the absence of a mandatory data retention law, traffic data crucial to the investigation of “serious crime” would not have been available to law enforcement.
Despite the European Commission’s efforts to preserve the Directive as-is, a leaked letter confirms that the Commission has been scrambling to conjure evidence for the “need” of a DRD scheme in the European Union. It also underscores the fact that there is no system of oversight that would allow citizens to monitor the impact of the proposed program on their privacy rights. Perhaps the most disquieting detail that has been confirmed by the letter is that service providers have already been storing instant messages, chats, uploads, and downloads. This type of data collection falls outside the scope of the DRD. Moreover, the letter indicates that “unnamed” players seek to broaden the uses of the DRD to include prosecution of copyright infringement including “illegally downloading.” Since this is not a serious crime, this legally falls outside the scope of the DRD.
In response to this leak, EDRI stated, “The leaked document however shows that the Commission can neither prove necessity nor proportionality of the Data Retention Directive – but still wants to keep the Directive.” The leaked letter also disclosed that the EU Commission is evaluating the possibility of amending the Directive. The Commission has commissioned a study into data preservation in the EU and around the world. According to the letter, this exercise is to be completed by May 2012.
Ending Data Retention: Constitutional Challenges
Constitutional courts have begun weighing in on the legality of this mass-surveillance scheme. In a decision celebrated by privacy advocates, the Czech Constitutional Court declared in March 2011 that the Czech data retention law was unconstitutional. Earlier this month, the same Court dealt another blow to data retention by annulling part of the Criminal Procedure Code, which would have enabled law enforcement access to data stored voluntarily by operators. Most importantly, the Czech Court used compelling language in articulating the importance of the protection of traffic data. The Court stated that the collection of traffic data and communication data warranted identical legal safeguards since both have the same “intensity of interference”.
We couldn’t agree more. Sensitive data of this nature demands stronger protection, not an all-access pass. Individuals should not have to worry whether one sort of private information has less protection than another.
I believe that both decisions will help ensure that new legislation enforces the same restrictions as exist for use of wiretap. These include strong privacy safeguards for government access to citizen’s data, the obligation to inform individuals about the use of their data, and so on.
Several other courts in EU member states have also ruled on the illegality of data retention laws. Earlier in 2009, the Romanian constitutional Court rejected the imposition of an ongoing, sweeping traffic data retention program. The Court rightly emphasized that mandatory data retention overturns the presumption of innocence in a way that treats all Romanians like potential suspects. Despite this court decision, a new draft data retention bill was introduced in the Parliament, but the Senate finally rejected it at the end of 2011.
In March 2010, the German Court declared unconstitutional the German mandatory data retention law. The Court ordered the deletion of the collected data and affirmed that data retention could “cause a diffusely threatening feeling of being under observation that can diminish an unprejudiced perception of one’s basic rights in many areas.” The lawsuit was brought on by 34,000 citizens through the initiative of AK Vorrat, the German working group against data retention.
Over in Ireland, the Court is referring to the European Court of Justice the case challenging the legality of the DRD, thanks to the complaint brought by Digital Rights Ireland. The Irish Court acknowledged the importance of defining “the legitimate legal limits of surveillance techniques used by governments”, and rightly emphasized that “without sufficient legal safeguards the potential for abuse and unwarranted invasion of privacy is obvious”. The Courtsin Cyprus and Bulgaria have also declared their mandatory data retention laws unconstitutional.
The DRD compels EU member countries to implement the Directive into national law. Fortunately, many member states have not yet done so. The Czech Republic, Germany, Greece, Romania, and Sweden have not adopted this piece of legislation, despite pressure from the European Commission to do so. In Austria, the data protection law will take effect in April 2012. AK Vorrat Austria plans to use all legal means to challenge the legality of the DRD. They have also handed over a petition to the Austrian Parliament asking the government to fight against the DRD at the EU level and to review all existing anti-terror legislation. (If you are Austrian, sign the petition today at zeichnemit.at.) In Slovakia, the NGO European Information Society Institute is opposing the Slovakian data retention implementation law.
Meanwhile, civil society groups are resisting and campaigning against this oppressive data retention law. EDRI, along with EFF and AK Vorrat, has fought to repeal the DRD in favor of targeted collection of traffic data. EDRI has previously reported that Deutsche Telekom, a German telco, illegally used telecommunications traffic and location data to spy on roughly 60 individuals including journalists, managers, and union leaders. They also reported that two major intelligence agencies in Poland used retained traffic and subscriber data to illegally disclose journalistic sources without any judicial oversight. These are only a few examples in which data retention policies have directly threatened individuals’ expression and privacy rights.
The DRD is a threat to Internet privacy and anonymity, and has been proven to violate the privacy rights of 500 million Europeans. EFF, together with EDRI, will keep fighting to repeal the DRD in favor of targeted collection of traffic data.
Mandatory Data Retention in the United States
Two bills introduced in the U.S. Congress in 2009 would have required all Internet providers and operators of WiFi access points to keep records on Internet users for at least two years to assist police investigations. Neither bill became law. Some legislators and law enforcement officials continue to argue, however, that mandatory data retention is necessary to investigate online child pornography and other Internet crimes. In January 2011, the U.S. House of Representatives Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing that discussed whether Congress should pass legislation that would force ISPs and telecom providers to log Internet user traffic data. In May 2011, H.R. 1981, which would require retention of such traffic data, was introduced in the House of Representatives. This bill is still alive and continues to be a threat to the privacy and anonymity of all Americans. EFF has joined civil liberties and consumer organizations in publicly opposing H.R. 1981. Please join EFF, and help us defeat this bill before it is made law. Contact your Representative now.