Does online surveillance violate fundamental rights of EU citizens?

In the wake of revelations of large-scale electronic surveillance by the American National Security Agency (NSA), concern has been growing about European participation in surveillance of EU citizens. According to studies conducted by the Centre for European Policy Studies (CEPS), EU intelligence services often cooperate with the NSA and conduct their own legally questionable surveillance. On 4 July 2013, the European Parliament (EP) adopted a resolution of its own initiative, demanding EU withdrawal from agreements on the exchange of financial information and flight passenger information unless the US came clean about surveillance. However, on 27 November 2013, the European Commission (EC) rejected the demand in a report on the programmes. Citing “written assurances from the U.S. authorities”, EU Commissioner for Home Affairs, Cecilia Malmström, maintained that there is no proof of US wrongdoing which would warrant such a move.

US and EU surveillance programmes

Investigating the issue for the EP Committee on Civil Liberties, Justice and Home Affairs, a 6 November CEPS report goes into considerable detail on the nature of US and EU electronic surveillance programmes. Although not the first revelation of government surveillance, the report argues that the new NSA leaks reveal programmes of an unprecedented “scale and depth”. The study indicates that UK surveillance is more extensive than that carried out by other EU intelligence services – in particular, it reviews programmes in Sweden, France, Germany and the Netherlands. However, there are “strong suggestions to indicate that several if not all” of these latter member states are not only conducting their own surveillance but also exchanging intercepted data, “with foreign intelligence services, namely the NSA.”

The report further explains that a common feature of the American and European programmes surveyed is “the lack of [a] clearly delineated set of objectives” that would justify resorting to surveillance. “There is no evidence across the member states selected for examination that surveillance programmes are restricted to counter-terrorist operations or countering external (military) threats.” For one thing, the large number of organisations with access to the data gathered from (and the intelligence derived from) surveillance, suggests that “data are being used for a wide range of security purposes far beyond the narrow focus of counter-terrorism and defence.”

Surveillance harms citizens’ rights and trust in the EU

CEPS considers that, “from a legal point of view, EU surveillance programmes are incompatible with minimum democratic rule-of-law standards and compromise the security and fundamental human rights of citizens and residents in the EU.” Furthermore, CEPS stipulates that revelations of surveillance have “undermined the trust that EU citizens have in their governments and the European institutions to safeguard and protect their privacy.” This warning was echoed by the EP rapporteur on data surveillance, MEP Jan Philipp Albrecht, who during a 4 October CEPS conference suggested that euro-scepticism amongst EU populations is fuelled by a widespread perception that EU leaders fail to take citizen’s rights seriously.

In reaction to the 27 November announcement by the EC, the EP rapporteur criticised the Commission for having “completely ignored the demand of the European Parliament”. The EC Commissioner for Home Affairs shot back at critics during a news conference, stating that, “the Commission does not suspend an agreement with an international partner on the basis of two articles in the newspaper”.