Parliamentary oversight of security and intelligence agencies in the EU

One of the reasons for the lack of posts on this blog the past months is that I co-authored this large study (446 pages), together with Aidan Wills, for the European Parliament’s Civil Liberties, Justice and Home Affairs Committee (LIBE). The study came out today, and also includes a number of attachments written by national intelligence oversight bodies.

Abstract: This study evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of indepth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies.

We will present the study at the LIBE Committee at 15h on Monday the 3d of October. An Interparliamentary Committee Meeting on  “Democratic Accountability of the Internal Security Strategy and the Role of Europol, Eurojust and Frontex” will be held on Wednesday 5 October from 15.00 to 18.30 and on Thursday 6 October from 9.00 to 12.30 in the Hemicycle of the Paul-Henri Spaak building of the European Parliament as well, which is open to the public. You can register for this meeting until the 29th of September.

Nigeria: Senate, House Approve Anti-Terrorism Bill

On February 22, 2011, Nigeria’s House of Representatives adopted an anti-terrorism bill that had been passed on February 17 by the Nigerian Senate (An Act to Provide for Measures to Combat Terrorism and for Related Matters). It gives government agencies broad powers to investigate terrorist activities and gives the authority to try terrorism suspects to the Federal High Court of Nigeria.

Having cleared its final major hurdle in the House of Representatives, the bill will almost definitely become law soon. After its adoption by the Senate, the bill needed the approval of the House of Representatives and the signature of the President of Nigeria to become law. Its fate in the House of Representatives had been unclear after that body suspended deliberations indefinitely on its own version of an anti-terrorism bill in August 2010 because of wide disagreement among its members on some of the provisions.

Although the bill needs presidential assent in order to become law, this phase of the process is only a formality, because the bill enjoys the strong support of the President, who has been calling for its quick passage.

The bill provides a broad definition of what constitutes an act of terrorism. An act “intended or [that] can reasonably regarded as having been intended” to force a government or an international organization to carry out or abstain from carrying out a certain act is an act of terrorism.

Researching or developing a biological or chemical weapon without lawful authority is an act of terrorism. Dissemination of information (be it true or false) “calculated to cause panic, evoke violence or intimidate a government, a person or group of persons” is also considered an act of terrorism.

The bill gives broad powers to government without any judicial oversight. A Security Intelligence Officer may enter and search any place, person, or vehicle without a warrant if he has “reason to suspect” that an offense is being committed and there is evidence of a commission of an offense under the bill. (Id. at §23.)

The Officer may also search, detain, and arrest anyone if he has a “reasonable suspicion” that the person has committed or is about to commit an offense under the bill (id.) The Director General of State Security Service (DG) may use communication service providers as he deems fit. (Id. at §24.) The DG also has the authority to seize funds if he has reasonable grounds to suspect that they were obtained through acts of terrorism, they belong to a terrorist organization, or they were intended for use to further terrorist activities. (Id. §11.) A Senior Security Officer has the authority to order the detention of a terrorism suspect for 48 hours without access to anyone, including his/her attorney. (Id. at §26.)

The bill gives law enforcement officers immunity from civil or criminal liability for the use of force “as may be necessary for any purpose” that results in injury or death to any person or damage or loss to any property. (Id. at §10.) Law enforcement officers include employees of the Defense Intelligence Agency, the Department of State Services, the Economic and Financial Crimes Commission, the National Agency for the Prohibition of Persons, the National Drug Law Enforcement Agency, the National Intelligence Agency, Nigerian Immigration Services, Nigerian Customs Services, and the Nigerian Police Force. (Id. at §33.)

Obama signs Sept. 11 first responders bill (‘the James Zadroga 9/11 Health and Compensation Act’)

President Barack Obama said Sunday he was honored to sign a bill to provide aid to survivors of the Sept. 11 attacks and first responders who became ill working in the ruins at the World Trade Center.The James Zadroga 9/11 Health and Compensation Act was named after a police officer who died of a respiratory disease he contracted during the 9/11 rescue operations. The bill was one of the last measures Congress passed before adjourning in December. The $4.2 billion measure will be paid for with a fee on some foreign companies that get U.S. government procurement contracts

European Commission adopts internal security strategy

The “EU Internal Security Strategy in Action” adopted today comprises 41 actions to be regulated in the coming four years and is imed at implementing the extra powers in the field of home affairs acquired by the EU once the Lisbon Treaty came into force. It also responds to requests from the European Parliament to have EU-based data extraction and analysis on bank transactions to terrorist organisations, instead of sending all the banking data to the US, where such a programme has existed since 2001. Read COM(2010) 673 final here.

The EU Internal Security Strategy in Action identifies five strategic objectives and outlines a series of actions for each of them:

1. Disrupt international crime networks
– To identify and disrupt criminal networks, it is essential to understand their members’ methods of operating and their financing, the Commission says.

The Commission will therefore propose in 2011 EU legislation on the collection of Passenger Name Records of passengers on flights entering or leaving the territory of the EU. These data will be analysed by the authorities in Member States to prevent and prosecute terrorist offences and serious crimes.

– The Commission also suggests to revise the EU anti-money laundering legislation and setting up joint investigation teams

The Commission will propose legislation in 2011 to strengthen the EU legal framework on confiscation as well.

2. Prevent terrorism and address radicalisation and recruitment
The Commission stresses that the core of the action on radicalisation and recruitment is – and should remain –
at national level.

By 2011, and in partnership with the Committee of the Regions, the Commission will promote the creation of an EU radicalisation-awareness network.This network will consist of policy makers, law enforcement and security officials, prosecutors, local authorities, academics, field experts and civil society organisations, including victims groups. The Commission will also support the work of civil society organisations which
expose, translate and challenge violent extremist propaganda on the internet.

The Commission will in 2012 organise a ministerial conference on the prevention of radicalisation and recruitment at which Member States will have the opportunity to present examples of successful action to counter extremist ideology.

More importantly the Commission will in 2011 consider devising a framework for administrative measures under Article 75 of the Treaty as regards freezing of assets to prevent and combat terrorism and related activities, and it will develop a policy for the EU to extract and analyse financial messaging data held on its own territory.

3. Raise levels of security for citizens and businesses in cyberspace
– Establishment of an EU cybercrime centre (2013).
– Establishment of a network of Computer Emergency Response Teams (CERT) (2012).
– Establishment of a European information sharing and alert system, EISAS (2013).

The Commission adds:

The handling of illegal internet content – including incitement to terrorism – should be tackled through guidelines on cooperation, based on authorised notice and take-down procedures, which the Commission intends to develop with internet service providers, law enforcement authorities and non-profit organisations by 2011. To encourage contact and interaction between these stakeholders, the Commission will promote the use of an internet based platform called the Contact Initiative against Cybercrime for Industry and Law Enforcement.

4. Strengthen security through border management
– Establishment of European external border surveillance system, EUROSUR (2011).

EUROSUR will establish a mechanism for Member States’ authorities to share operational information related to border surveillance and for cooperation with each other and with Frontex at tactical, operational and strategic level. EUROSUR will make use of new technologies developed through EU funded research projects and activities, such as satellite imagery to detect and track targets at the maritime border, e.g. tracing fast vessels transporting drugs to the EU.

According to EU observer “Eurosur is likely to spark controversy among human rights groups
pointing to the fallacy of mashing together asylum seekers and irregular
migrants with traffickers and organised crime lords. “

– Better analysis to identify ‘hot spots’ at the external borders (2011).
– Joint reports on human trafficking, human smuggling and smuggling of illicit goods as a basis for joint operations (2011).

The Commission shrewdly states that Frontex should be able to process personal data.

During its operations, Frontex comes across key information on criminals involved in trafficking networks. Currently, however, this information cannot be further used for risk analyses or to better target future joint operations. Moreover, relevant data on suspected criminals do not reach the competent national authorities or Europol for further investigation. Likewise, Europol cannot share information from its analytical work files. Based on experience and in the context of the EU’s overall approach to information management, the Commission considers that enabling Frontex to process and use this information, with a limited scope and in accordance with clearly defined personal data management rules, will make a significant contribution to dismantling criminal organisations. However, this should not create any duplication of tasks between Frontex and Europol.

5. Increase Europe’s resilience towards crises and disasters
– Proposal on the implementation of the solidarity clause (2011).
– Proposal for a European Emergency Response Capacity (2011).
– Establishment of a risk management policy linking threat and risk assessments to decision making (2014).

The Commission will submit an annual progress report to the European Parliament and the Council. The Commission will support the Standing Committee on Operational Cooperation on Internal Security, COSI, which will play a key role in ensuring the effective implementation of the strategy.

Implementing the strategy: the role of COSI
The Commission will support the activities of the Standing Committee on Operational Cooperation on Internal Security (COSI) to ensure that operational cooperation is promoted and strengthened, and that coordination of the action of Member States’ competent authorities is facilitated.

Comments
Commissioner Malstrom:

“EU internal security has traditionally been following a silo mentality, focusing on one area at a time. Now we take a common approach on how to respond to the security threats and challenges ahead. Terrorism, organised, cross-border and cyber crime, and crises and disasters are areas where we need to combine our efforts and work together in order to increase the security of our citizens, businesses, and societies across the EU. This strategy outlines the threats ahead and the necessary actions we must take in order to be able to fight them. I encourage all relevant actors to take their responsibility to implement these actions and thereby to strengthen EU security”, said Cecilia Malmström, Commissioner for Home Affairs.

Background
In February 2010, the Spanish EU Presidency outlined the security challenges for the EU in an Internal Security Strategy (“Towards a European Security Model“), and called on the Commission to identify action-oriented proposals for implementing it.

ICO calls for post-legislative scrutiny of laws affecting privacy

The UK Information Commissioner has called for any new laws that impact on privacy to be subjected to post-legislative scrutiny, citing local authorities’ use of covert surveillance in school catchment area disputes as justification for the move.

In a report to Parliament, Christopher Graham said there should be a legal requirement for such scrutiny to ensure laws are being implemented and used as intended by Parliament.

The watchdog argued in the report in favour of the use of ‘sunset’ clauses where the laws pose a high privacy risk. He also called on the private sector to examine the privacy implications of new technologies before they launch them, and urged the widespread adoption of privacy enhancing technologies.

Graham said: “Many of the new laws that come into force every year in the UK have implications for privacy at their heart. My concern is that after they are enacted there is no one looking back to see whether they are being used as intended, or whether the new powers were indeed justified in practice.

“One example of this is the use of covert CCTV surveillance by local councils to monitor parents in school catchment area disputes under powers designed to assist in crime prevention and detection.”

The report was submitted to the home affairs select committee, which is conducted an inquiry into the surveillance society.

Research findings in the report put forward by the Surveillance Studies Network, a group of academic experts, suggested that more needed to be done to ensure privacy safeguards keep pace with developments in surveillance.

NY Court ruling limits scope of state terror law

After Robert T. Johnson, the Bronx district attorney, successfully used New York State’s antiterrorism law to prosecute a gang member who had killed a 10-year-old girl in a gun battle, he said the verdict was significant in determining an appropriate punishment for someone who had “snuffed out” the life of an innocent child. But an appeals court disagreed this week, the NY Times reports. The defendant “acted for the purpose of asserting his gang’s dominance over its particular criminal adversaries, namely, members of rival gangs,” a panel of the Appellate Division of State Supreme Court ruled on Tuesday. “Such conduct falls within the category of ordinary street crime, not terrorism.”

Yemen bans name changes to prevent terrorism

Yemen’s Justice Ministry reportedly introduced the ban recently in a move it said would help the government keep track of its citizens.

“With a new name people could escape their responsibilities,” Khalid Al-Dubais, a Yemini media relations officer, was quoted as saying in the Yemen Times. “If there is an urgent justified need for changing the name, the court will look into it.”

The name change ban follows other recent steps by the Yemeni government to fight against an assortment of Islamist insurgents, separatists, and al-Qaida. Just last month, Yemini authorities banned motorcycles in a province where al-Qaida had a growing presence, maintaining that militants use them to transport weapons. 

The latest order was issued September 19, after a number of Yemeni judges wrote to the Justice Ministry about an increasing number of people filing name-change requests, the Yemen Times reported.

In addition, the country’s Civil and Personal Status Authority had received a number of applications for name-changes on personal ID cards. In a country that honors lineage as sacred, some were requesting to alter how their father’s and grandfather’s names appeared on their identity cards.

Council of Europe assesses UK implementation of S & Marper judgment

In its Programme for Government of 20/05/2010 the new UK government stated that “We will adopt the protections of the Scottish model for the DNA database”. A more detailed proposal, including whether to bring into force any aspects of the Crime and Security Act as an interim measure is being considered. (see below)I t is anticipated that the coalition government will submit legislation to Parliament on DNA retention (based on the Scottish model) in Autumn 2010, anticipating that it will be brought into force by Autumn 2011. T

The Council of Europe notes however that information is awaited on the detail of the new legislation and any  interim measures envisaged. Given that the legislation criticised by the Court at the time of the judgment remains in force and the size of the  database and number of individuals possibly affected, information on the implementation of interim measures is of particular importance in  relation to both the current situation and the treatment of “legacy  profiles”.

1) Crime and Security Act 2010: The new provisions envisaged the following powers of retention:

– Cellular samples: samples should not be retained beyond a  six-month maximum, which is needed to ensure satisfactory loading of the profile taken from the sample onto the NDNAD (section 64ZA).

– Adults: six-year retention period for the fingerprints and DNA profiles of adults arrested but not ultimately convicted of an  offence, irrespective of the seriousness of the crime for which they  were arrested (section 64ZD).

– Minors:

– 16 and 17 year-olds: six-year retention period for the  fingerprints and DNA profiles of minors aged 16 and 17 years arrested  but not ultimately convicted of a serious offence (section 64ZG). For  other recordable offences (lesser offences) the retention period shall  be three years (section 64ZE).

– Under 16 year-olds: three-year retention period for the  fingerprints and profiles of minors aged under 16 years arrested but not ultimately convicted of an offence, irrespective of the seriousness of the crime for which they were arrested (section 64ZE and 64ZF). Although not evident in the text of the Act, the United Kingdom authorities have confirmed that steps have been taken to remove the records of children  under 10 from the NDNAD, and such material will not be retained in the  future

– Terrorism and national security: If the responsible Chief Officer determines that fingerprints or DNA profiles are to be retained for national security purposes, they need not be destroyed in  accordance with the above retention periods for as long as the determination has effect (section 64ZK, see also clauses 17 and 18 of  the Crime and Security Bill amending Schedule 8 of the Terrorism Act  2000). Such a determination has effect for a maximum of two years  beginning with the date on which the material would otherwise be required to be destroyed, but may be renewed.

– Volunteers: Material which has been given voluntarily is to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless, among other reasons, the individual consents to its retention under section 64ZL (section 64ZB). Consent to retention of  material under section 64ZL may be withdrawn at any time.

– Legacy profiles: Section 22 requires the Secretary of State to make provision for the destruction of material taken prior to the commencement of the relevant provisions of the Bill which would have been destroyed had those provisions been in force when the material was obtained.

– Review procedure: Under section 64ZI(5), material falling within sections 64ZD to 64ZH must be destroyed if it appears to the  Chief Officer that (a) the arrest was unlawful; (b) the taking of the  fingerprints, impressions of footwear or DNA sample concerned was  unlawful; (c) the arrest was based on mistaken identity, or (d) other  circumstances relating to the arrest or the alleged offence mean that it is appropriate to destroy the material. Section 23 requires the  National DNA Database Strategy Board to issue guidance to chief officers on the early destruction of samples and DNA profiles.

HRW calls on Chile to amend anti-terrorism law and military jurisdiction

Chile should limit the scope of its military justice system and reform the country’s anti-terrorism law so that it can no longer be used to prosecute actions that do not constitute grave crimes of political violence, Human Rights Watch said today.

The legislative branch is currently debating two proposals, one to modify the anti-terrorism law and the other to limit military jurisdiction, presented by President Sebastian Piñera to Congress earlier in September 2010. On September 21, the Chamber of Deputies approved some modifications to the anti-terrorism legislation, which are now being debated in the Senate. The proposals come at a time when at least 32 incarcerated members of the indigenous Mapuche population in Southern Chile are on a hunger strike to protest the application of the anti-terrorism law to their cases, as well as their prosecution by military courts. They began their hunger strike on July 12.

Harvard Law School guide to media law in the internet age

Excellent overview on US media law, including on the right to know (Freedom of Information Act (FOIA)), libel and privacy and Safe Harbors.