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Democracy is dead – long live the Commission!

Posted by on January 28, 2015.

Democracy in Europe is dead. I make no comment about the US, but doubt that it is very different.

In Europe we have an elected European Parliament. It tries hard, but has about as much potency as a eunuch in a house of screaming hellcats. The hellcats are the European Commission. The Commission is unelected. It runs Europe and does what the hell it likes. Mostly it likes what the United States wants.

One of the things the US wants is reams of data on people coming to America. Not targets, not suspects, but everyone. It wants that data and it wants to be able to store that data. That data is known as the passenger name record (PNR).

Europe already has an agreement with the US; but strictly speaking it should be abolished. Last spring the European Court of Justice (ECJ) struck down the EU’s Data Retention Directive as unconstitutional. The court had five objections:

  1. the blanket nature of the collection of data, “without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.”
  2. insufficient limitation on access to and use of the data by national authorities
  3. the blanket nature of the period of data retention, which fails to ensure that data is only kept for as long as is strictly necessary
  4. insufficient safeguards against abuse of the data retained, and fails to ensure the irreversible destruction of the data at the end of the retention period
  5. finally, the directive does not ensure that the retained data remains within the EU, as required by EU law.
    European Court dumps the Data Retention Directive

Every one of those objections could be equally applied to the EU-US PNR agreement. Furthermore, when the Commission had wanted to extend PNR for use internally within the EU, the Parliament refused.

What’s the difference this time around? Last year’s U.S.-E.U. Agreement was supported by a strong lobbying effort from the U.S. Department of Homeland Security, backed up by repeated threats by U.S. authorities to suspend visa-free travel by E.U. citizens to the U.S.

The domestic E.U. PNR proposal was subject to no such arm-twisting, enabling the LIBE to do its job and defend the rights of E.U. citizens. It’s a victory for European rights, and bodes well for the prospect of a strong Data Protection Regulation outcome.
EU Parliament says no to EU PNR system


Theresa May

But the hellcats are never happy having their wishes thwarted, and are quick to make use of any tragedy. From today’s Guardian:

European interior ministers, including the home secretary, Theresa May, who has been pushing the issue most strongly, agreed in Paris on the day of the “Je Suis Charlie” unity march that their main counter-terrorism priority in tracking foreign fighters was to overturn the European parliament’s opposition to the plan.
European counter-terror plan involves blanket collection of passengers’ data

The process is clearly enunciated in an internal Commission document leaked by Statewatch. It starts,

The Orientation Debate on the European Agenda on Security held by the College on 21 January 2015 confirmed the call for further work on the existing Commission proposal for a Directive on the use of PNR data for the prevention, detection, investigation and prosecution of terrorist offences and serious transnational crime.

This note is aimed at allowing the Commission to take an informed decision about the best way forward…
EU PNR – the way forward

Jan Philipp Albrecht, Green MEP

Jan Philipp Albrecht, Green MEP

This document is just a cynical attempt at rephrasing what has already been rejected in a manner that might just slip past the ECJ’s objections to blanket data processing. MEP Jan Philipp Albrecht commented,

This leak makes clear that the Commission is planning to serve up a re-heated version of the existing, stalled proposal for an EU air passenger data surveillance system (PNR). The attacks in Paris have again underlined that blanket mass data retention does not help catch terrorists: there was no shortage of data on the perpetrators. Retabling the same tweaked PNR proposal is an affront to the democratic process, with the European Parliament already having rejected this scheme due to concerns about its impact on the fundamental rights of EU citizens. Following the crystal clear judgement by the European Court of Justice last year, which declared blanket mass surveillance measures as incompatible with EU fundamental rights, it is unthinkable that the Commission would try and bulldoze through a PNR scheme based on blanke[t] data collection.

If the EU were a genuine democracy the Commission would be seeking to dismantle the EU-US PNR agreement, not trying to extend it into Europe itself.

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