By Chloé Berthélémy

The draft Report of the rather secretive work carried out by the European Parliament’s Special Committee on Terrorism (TERR) released in June 2018 raised major concerns, as previously reported in the EDRi-gram. On 13 November 2018, the members of the TERR Committee voted on the amendments to the draft.

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If they had been adopted, some of the proposed amendments could have improved the text and, we would be telling a different story today. Unfortunately, the Report seems to be beyond salvation. Despite its non-binding nature, the text sets dangerous precedents and does not even respect the mandate of the Committee “to assess the impact of the EU anti-terrorism legislation and its implementation on fundamental rights”. Instead, it maps current initiatives related (or not) to counter-terrorism and recommends considering proposals that further erode fundamental rights online and offline in the European Union. The Report will soon be tabled for a plenary vote in the European Parliament. Its chances to be significantly amended or rejected are, however, not big.

Fundamental rights deserve more than a preamble

The draft Report originally included a section dedicated to fundamental rights, which proved to be very problematic. For example, it claimed that the right to security was more important than the right to privacy – that we somehow should surrender our fundamental rights in exchange for security. It was also narrowly focused on the rights of a limited category of people. Unfortunately, references to fundamental rights were so scarce that Committee members chose to add a preamble to the Report to introduce vague considerations for the respect of fundamental rights and freedoms instead of mainstreaming our fundamental rights in the text. For instance, the Report calls for the alignment of the European counter-terrorist policies with the Charter of Fundamental Rights of the European Union, while proposing measures that are in contradiction to this principle.

Accepted amendments merely establish a “shopping list” of individual rights. None of the fundamental rights provisions of the Report is substantiated with concrete proposals to end violations of fundamental rights or how to better enforce and respect these rights. For instance, the Committee missed the opportunity to advocate for impact assessments focused on human rights or for the systematic consultation of organisations focussed civil liberties and fundamental freedoms, including civil society and Data Protection Authorities (DPAs). Compensating repressive and freedom-restrictive measures with superficial references to fundamental rights (such as removing more content online “but without endangering freedom of speech” or balancing interoperability with “fundamental rights of the data subjects”) is utterly insufficient at best and duplicitous at worst. Fundamental rights deserve stronger protection.

TERR Committee, the Commission’s yes-man

It is an easy see that the Report praises the European Commission’s rhetoric and legislative action. In terms of institutional framework, the text calls for the maintaining a Commissioner for Security Union. It ignores the fact that this function created multiple overlaps and frictions with other Commissioners’ portfolios and shifted the focus of many legislative files (such as the draft Terrorism Regulation) to a purely law enforcement perspective, moving them away from consideration of fundamental rights and civil liberties requirements.

Another example is that the Report calls for the swift adoption of the Commission’s proposals for cross-border access to electronic evidence, despite many concerns repeatably expressed by several stakeholders, including the European Data Protection Board and despite the fact that the democratic scrutiny of this instrument has hardly started in the Parliament.

Worse still, it exacerbates the initial provisions on encryption, by requesting the development of a hub for decryption, including decryption tools and expertise within Europol, to access data obtained in the course of criminal investigations. Weakening encryption to supposedly support law enforcement services actually creates vulnerabilities and increases security risks.

Is there something that could save the day?

Fortunately, one can also dig out a few positive elements. For example, the text recommends to keep counter-terrorism as an area of responsibility of the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE). In addition, the Committee advocates for the integration of media and information literacy into national education systems in order to teach how to use the internet responsibly. Elaborating on the right to privacy, the text also calls on the Commission and the European Data Protection Supervisor (EDPS) to further develop innovative “privacy by design” solutions.

Overall, however, the Report sends a very bad sign to citizens that – even in a non-binding report – giving up liberty in return for security (even if perfect security was possible) is a deal worth making.

The final version is expected to be tabled for a vote in European Parliament plenary in the coming months.

EU Parliament’s anti-terrorism draft Report raises major concerns (10.10.2018)
https://edri.org/eu-parliaments-anti-terrorism-draft-report-raises-major-concerns/

Draft report on findings and recommendations of the Special Committee on Terrorism (21.06.2018)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-621.073+01+DOC+PDF+V0//EN&language=EN

Amendments to the Draft report on findings and recommendations of the Special Committee on Terrorism (12-18.09.2018)
http://www.europarl.europa.eu/committees/en/terr/amendments.html

EU’s flawed arguments on terrorist content give big tech more power (24.10.2018)
https://edri.org/eus-flawed-arguments-on-terrorist-content-give-big-tech-more-power/

Independent study reveals the pitfalls of “e-evidence” proposals (10.10.2018)
https://edri.org/independent-study-reveals-the-pitfalls-of-e-evidence-proposals/

Opinion on Commission proposals on European Production and Preservation Orders for electronic evidence in criminal matters (08.10.2018)
https://edpb.europa.eu/our-work-tools/our-documents/opinion-art-70/opinion-commission-proposals-european-production-and_en

(Contribution by Chloé Berthélémy, EDRi intern)

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