Mary Ellen O’Connell ASIL piece on the international law of drones

This ASIL insight surveys the international law applicable to the recent innovation of weaponizing drones.

Article 29 WP Opinion 7/2010 on European Commission’s Communication on the global approach to transfers of Passenger Name Record (PNR) data to third countries

The European data protection authorities remain very critical about the European Commission’s wish to exchange Passenger Name Record (PNR) data with countries outside the European Union. In its opinion, the Article 29 Working Party questions the necessity of large-scale profiling for law enforcement purposes on the basis of passengers’ data. The European data protection authorities stress that the European Commission still has not presented objective proof or statistics that PNR data are valuable when combating terrorism or transnational crime.

In the current Communication, the European Commission merely states that PNR are an increasingly accepted tool, necessary in the fight against terrorism and serious crime, without substantiating this statement. The Commission does not seem to make a distinction between the increasing use of PNR data and the increasing acceptance of the use of these data. It may be the case that the law enforcement authorities have indeed become used to having PNR data at their disposal, but that fact alone does not prove political or public acceptance of the collection and use of PNR data, nor does it justify its necessity.

The three arguments given in paragraph 2.2 of the Communication seem to indicate that: “it is nice for the law enforcement authorities to have PNR data” rather than “the law enforcement authorities need to have PNR data to combat terrorism and serious crime”. The Working Party also regrets the Commission has not felt the need to further elaborate on the effectiveness of the use of PNR data, which is an essential element when judging necessity.

In its previous opinions, the Working Party has time and again stressed the importance of striking the right balance. So far, this has not been the case. Most importantly, there are no objective statistics or evidence which clearly show the value of PNR data in the international fight against terrorism and serious transnational crime. This makes it impossible to clearly assess the necessity or the proportionality of the use of PNR for law enforcement purposes.

According to the Working Party, any PNR system should be:
· demonstrably necessary to address the problem;
· demonstrably likely to address the problem;
· proportionate to the security benefit;
· demonstrably less invasive than alternative measures; and
· regularly reviewed to ensure the measures are still proportionate.

Regulation of investigatory powers act 2000: proposed amendments affecting lawful interception

The UK government is running a short, targeted consultation in respect of two specific changes to RIPA to address an incorrect transposition of European Directives.

Those changes concern:

    * informed consent when both parties consent to their communications being intercepted
    * the creation of a sanction for unintentional unlawful interception

The consultation will run until 7 December.

Although the transposition of the E-Privacy Directive was completed in 2003, the European Commission has identified deficiencies in the way in which the Data Protection Directive and the E-Privacy Directive were transposed.

The UK is now seeking to make changes to RIPA to address two of these issues, namely:

   1. the existing offence in RIPA only addresses intentional unlawful interception
   2. in the provisions where both parties consent to an interception the requirement for consent is not the same as in other data protection legislation.

The proposals are set out in detail in the accompanying document.

Please send your response to:

Lucy Watts
Home Office
5th Floor Peel Building 2 Marsham Street


Guantánamo Bay detainees to be paid compensation by UK government

The UK Government will announce today that it will pay millions of pounds in compensation to former Guantánamo Bay detainees following weeks of negotiations between lawyers for the government and the former prisoners. Those detainees understood to be in line for settlements include Binyam Mohamed, Bisher al-Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes, Moazzam Begg and Martin Mubanga. According to The Guardian:

Ministers appear to have decided on the advice of the security services that they could not afford to risk the exposure of thousands of documents in open court on how the US, with the co-operation of the UK, undertook illegal acts such as extraordinary rendition to interrogate terrorist suspects, including some alleged to have links with the Afghan Taliban.

In July, the High Court ordered the release of some of the 500,000 documents relating to the case. At least one detainee is understood to be in line for a payout of more than £1m.