Europol’s ever-increasing mandate: European Parliament failed to stand up for fundamental rights

 In full contradiction to a previous European Parliament position on AI and criminal law, and the EDPS recommendations, the just-approved reform legitimises a data-driven policing model that fails to protect our most basic rights. Instead of addressing the root causes of security issues, the European Parliament has approved giving even more power to an institution that already has the upper hand over people. This is a joint press release from EDRi and Fair Trials.

That’s why EDRi, Fair Trials and 16 other civil society organisations contentiously had urged the MEPs to vote down the text. However, they failed to fulfil their responsibility and commitment to society by accepting the proposals to extend Europol’s mandate.

“The European Union is transforming its law enforcement agency into a data black hole. Europol will be allowed to collect and share data left, right, and centre without much restriction or control. The reform of Europol also validates the development, deployment and use of harmful policing technologies that will undermine people’s most basic rights.” — said Chloé Berthélémy, Policy Advisor at European Digital Rights (EDRi)

The proposal allows Europol to operate without sufficient democratic accountability, oversight and safeguards to guarantee the protection of fundamental rights. It creates considerable risks of violations of the right to a fair trial, to privacy and data protection, to non-discrimination, and to freedom of expression.

“No law enforcement agency should be above the law. Europol already has vast amounts of data processing power and we have seen that EU institutions are turning a blind eye to its unlawful and high-risk activities. Extending Europol’s mandate sets a dangerous precedent, implying that law enforcement can operate without accountability or oversight. It is highly concerning for fundamental rights in the EU.” — Laure Baudrihaye-Gérard, Legal Director (Europe) of Fair Trials

Europol is increasingly collecting and processing vast amounts of personal data and analysing it with data mining techniques. In January 2022, the European Data Protection Supervisor (EDPS) ordered Europol to delete data that it had collected and processed illegally. The proposals to Europol’s mandate would retroactively legalise these activities, annul the EDPS order and further extend Europol’s processing capabilities.

The agency would also be given freedom to develop, use and supply high-risk AI tools, including predictive policing. This is in clear contradiction to the European Parliament’s 2021 resolution on the use of AI and the recent IMCO-LIBE report on the AI Act. Both support a ban on predictive policing, which will affect everyone, but especially racialised and marginalised communities as Europol will use AI that prioritises features informed by discriminatory assumptions to detect ‘suspicious behaviour’.

“Europol will develop and use algorithms based on data received from national police forces but the nature and origin of these data have not been questioned enough. They can be distorted by racial biases or come from corrupt and unlawful practices. These ‘dirty data’ will result in Europol’s technologies overly targeting certain socioeconomic, racial or ethnic groups and ultimately reinforcing structural inequalities.” — explained Berthélémy

Despite the significant increase in Europol’s powers, oversight would not be reinforced. The EDPS’s ability to oversee its processing activities would be restricted and the new Fundamental Rights Officer will be appointed among Europol’s staff. So, there will be no effective and independent democratic oversight ensuring the legitimacy of Europol’s decisions. This means that violations of rights risk going unnoticed for years.

Evidence shows that Europol is already a ‘black hole’ for personal data. A lack of safeguards and transparency means that it is often not possible to scrutinise or challenge data that becomes evidence in criminal proceedings, despite this being fundamental to the right to a fair trial. It is also impossible to identify errors or determine the legality of the collection of evidence.

“For too long, there has been a pressing need for more robust supervision of Europol’s activities. You would think that an increase in power would come with an increase in oversight, but this is not happening in Europol’s case. MEPs should have taken the chance to stand up for people’s rights instead of paving the way for an unaccountable model of policing that sets a worrying signal to all police forces in Europe,”  — added Baudrihaye-Gérard