UN Special Rapporteurs challenge EU’s counter-terrorism plans

In a joint communication published on 21 October 2021, seven United Nations Special Rapporteurs shared critical analysis of the European Union’s  Counter-Terrorism Agenda (CTA) and the reform of Europol’s mandate, the EU police cooperation agency.

The statement thematically covers the mandates of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Fionnuala Ní Aoláin, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Irene Khan, Special Rapporteur on the rights to freedom of peaceful assembly and of association Clement Nyaletsossi Voule, Special Rapporteur on the human rights of migrants Felipe González Morales, Special Rapporteur on minority issues Fernand de Varennes, Special Rapporteur on the right to privacy Ana Brian Nougrères and Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance E. Tendayi Achiume. Their analysis raises a number of serious concerns regarding the definitions used in the EU draft policies and the unchecked powers given to law enforcement and immigration authorities.

“Only broad and generic references to human rights”

Their statement does not judge the EU’s counter-terrorism plans kindly. While the Special Rapporteurs note that the scope of the new measures are “extensive in scope”, they point out the lack of crucial safeguards to guarantee human rights compliance in practice and the lack of monitoring and evaluation measures to understand and minimise the negative impacts on rights and freedoms.

Through their communication, the Special Rapporteurs demonstrate how several existing and foreseen EU security measures fail to meet the principles of legality, necessity and proportionality, enshrined in European and international laws (such as the Regulation on preventing the dissemination of Terrorism Content Online and the processing by Europol of sensitive data for profiling purposes). The fatal flaw lies in the use of broad and undefined terms to justify extensive interferences in human rights.

The Special Rapporteurs rightly question the specificity and meaning of “European values” and “European way of life”, both terms used as yardsticks for censoring online content and profiling travelers and migrants. For example, the statement criticises how Europol would be allowed to exchange personal data, including content hashes, IP addresses and URLs with private parties in order to detect and prevent the dissemination of “terrorist” and “extremist” material or “symbols” online and the creation of “terrorist accounts” on social media. Because the definitions of these terms are either absent or unclear and vague, the risk of overly censoring legitimate content is quite high. The statement emphasises that the risks of abusive and incorrect removals will become even greater with the use of Artificial Intelligence (AI) tools designed to automatically identify “terrorist content”. As a consequence and since social media facilitates the organisation of gatherings and collaboration, this censorship tools will likely curb the freedoms of association and peaceful assembly.

The problematic lack of concrete protective measures is also raised in the framework of Europol’s “large scale and indiscriminate collection and retention of data”, increased data sharing with private parties and “collection of broad categories of data such as racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership”. The Special Rapporteurs note that these provisions in Europol’s reform would disproportionately impact the human rights of specific groups of people, and therefore contravene the right to non-discrimination. At the same time there are no specific safeguards to ensure that “they are not used to curb the rights of political opposition parties, trade unions and human rights defenders”.

Rights-endangering AI in law enforcement and migration contexts

All seven Special Rapporteurs extensively express profound concerns with regards to the use of AI and biometric data that is promoted in the EU’s CTA and Europol’s reform. They note that governments and private actors are given “tremendous discretion” to develop AI-related technologies that could be basically illegal or that could prove problematic within a nascent legal framework.

The statement goes on to explain how this “imperfect” technology (notably facial recognition) exacerbates racial inequalities and “lead to expansive violations of the rights to equality and non-discrimination”, due to its inherent biases. Even if the CTA and Europol’s revised mandate make references to the need to avoid biases, train algorithms with good quality data and add proper safeguards for rights and freedoms, the actual text provisions do not convince the Special Rapporteurs: “such rhetoric is not sufficient to alleviate concerns regarding the implications that [facial recognition] offers adequate protection from discrimination.”

Furthermore, the ongoing securitisation of borders that is entangled with the deployment of so-called ‘smart borders’ (a set of technologies such as large-scale biometric identity databases developed and used to control borders) is pointed out as a particular aggravating factor of violations of migrants’ human rights, especially for certain national origin, ethnic or racial groups. Data extraction, carried out “on exploitative terms”, is said to strip refugees, migrants and stateless persons of human agency and dignity. The way emerging technologies are developed and deployed at the border and for immigration enforcement is harshly criticised as being “experimental, dangerous and discriminatory”. The Special Rapporteurs thus call on the EU to not only address the “explicit racism and intolerance” embedded in these technologies, but also to prevent the “structural forms of racial and other discrimination” that result from their use.

The statement concludes that the potential infringement on fundamental freedoms and human rights “permeates every layer of the EU CTA” and of Europol’s mandate reform. The authors therefore request further information from the EU that could prove that the foreseen measures will comply with international human rights law.

Unfortunately, the proposal to reform Europol Regulation is already quite advanced in the legislative process and there is little sign that the proposed extended collection, use and exchange of data by Europol will be halted. The proposal was accepted with little resistance and improvement by the European Parliament and is currently under negotiation between the Council and the Parliament. It is essential for fundamental rights that the substantive criticism of the current counter-terrorism trends in Europe by seven independent experts are heeded by the European institutions.

Image credit: Leandro Mazzuquini / Unsplash

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