Index on Censorship
no 3.05: Special issue:

Big Brother Goes Global
Index 3/05: As more an more key decisions are taken at high profile summits, public influence and democratic control is slipping away from the domestic arena to a host of uncountable and often obscure internatinal bodies. Index on Censorship asks if the age of Big Brother has finally arrived on a scale unimagined except in our wildest dreams and nightmares.

"Unaccountable Europe"
by Tony Bunyan (Statewatch editor)

It is argued that it is necessary to give up some civil liberties in the "war on terrorism" providing the restrictions on liberties are temporary and ended once the threat has ceased.

There is much that is wrong with this argument not the least being that the "war on terrorism" is permanent, not temporary. The "war on terrorism" has replaced the "Cold War" as the legitimating ideology for globalisation - the economic and the political go hand-in-hand.

Moreover the "war on terrorism" is far more pervasive and dangerous than the Cold War ever was. In the time of the Cold War there were a number of competing ideologies - Western-style capitalism and "liberal democracy", Soviet-style communism, Chinese-style communism and a host of third world socialisms. Today there is the "war on terrorism", western-style free market capitalism and "freedom and democracy" - and it is becoming hegemonic.

It is also argued by those who inhabit the EU institutions (and national governments) that "our way of life has not changed". "Whose way of life", I ask. White Europeans? Certainly the lives of refugees seeking asylum in Europe has changed - more are dying trying to get in, more are being refused asylum, more are being held in detention centres and more and more are being "voluntarily" removed and forcibly removed if they do not consent. Migrant communities, especially Muslim ones, have been targeted for surveillance, stop and search and raids on their homes. Black and third world people too, second, third, fourth generation are the target of racism and stop and search by the police.

It is actually argued that the swathe of measures put through (or planned) since 11 September 2001 has properly balanced security and civil liberties - and what is frightening is that governments, ministers, officials and many MPs actually believe this is true.

This is frightening not just because they cannot see how the lives of refugees and migrant communities have been "changed" but also because they are putting in place measures which will place the whole population of Europe under surveillance.

The surveillance of movement

First, there is to be the surveillance of movement. Already one of the four basic "freedoms" of the EU is gone - the freedom to move from country to country without being checked, all have to produce passports or ID cards to board planes (even in most cases for internal travel as well). In April 2004 the EU agreed that "passenger name record" (PNR) checks should be introduced on all flights in and out of the EU - all visitors and EU residents are to be "vetted" before boarding. It is not all clear against which "watch-lists" people will be "checked", will it be the EU's list of "terrorist" organisations and individuals or a wider list of "suspected" terrorists or perhaps lists of those wanted or suspected for terrorism, organised crime and for any criminal offence.

It is a matter of time before an "Advanced Passenger Information System" (APIS) is introduced which will put all passengers into one of three categories: Green, you can board. Yellow, you will be subjected to extra checks of baggage and person and/or questioned or place under surveillance on arrival. Red, placed under arrest on arrival at the airport or at the check-in desk. Of course there are flaws in this system, tests have shown that between 5-15% of passengers can be classified as "yellow" depending on whether a narrow (terrorist suspects) list is used or a wide (terrorist, organised crime and any crime) list. And the biggest flaw of all is that if the intelligence and security agencies do not know that a person is a terrorist then they will simply get on the plane through the "green" channel.

Second, is the decision of the EU in Decmber 2004 to introduce "biometric" passports. The EU says this is needed to respond to international demands for "biometric" travel documents in line with the adopted standard of the ICAO (International Civil Aviation Organisation) - a move emanating in G8 lead by the USA and the UK. However, the ICAO standard is only for a digital picture of a person to be included - this is simply the normal passport picture sent in with a postal application being "digitised" and the image inserted into a "chip" which can be read. This allows "one-to-one" checks at the points of entry and departure that the person carrying the passport is the same person as on the digitised picture.

It provides for a very basic check and has been erroneously referred to by government ministers and officials as the introduction of "biometric passports".

The biometric passport measure adopted in the EU is going to involve the taking of two (or more) fingerprints from everyone applying for a new passport (or for the first time). As many people living in the Schengen area travel within these countries using their ID cards there is a proposal under the Hague Programme to set "minimum standards" for ID cards - which no doubt will "harmonise" the use of fingerprints on them.

The UK has not "opted-in" to the Schengen provisions on border controls and immigration and is thus not covered by the EU scheme - which is why it is proposing to introduce its own "biometric passports" (this leaves Ireland which also has not "opted-in" to decide what to do). The UK is proposing to introduce biometric passports from the autumn of 2006 (for first-time applicants) and then for all renewals. This will involve the taking of fingerprints and a facial scan (a scan plotting and storing up to 1,840 unique features on a person face) and maybe even a "iris scan" as well.

Biometrics and the personal details of the individual will initially be stored on national databases and later be brought together on an EU-wide database.

The implications of this move are enormous. Over the next ten years as passports are renewed millions of people will have to physically go to a "processing centre" to be "enrolled". In the UK the estimated number is over 5 million people a year. "Enrolment" will involve not just having to go to a centre - instead of putting an application in the post - people will be interviewed and have to present documents to prove who they are. Then the biometrics will compulsory taken. In the UK the government is trying to get a Bill through parliament which everyone issued with a new passport (whether renewed or first time) will automatically be issued with an ID card as well.

As noted above people living in the Schengen area (15 countries) who have ID cards will be subject to the same processes when the new measure is adopted.

Sliding towards a "surveillance society"

The introduction of biometric passports and ID cards is though only part of the picture. A new EU health card is coming in from January 2006 which later will hold a person's medical history on a chip. New EU driving licence standards mean that these too will have to be renewed every ten years (like passports) and include first a digitised picture. Moreover, for passports and driving licences there have been suggestions that these should be renewed every five years instead of every ten.

It is not very hard to see that within the next ten years there will be moves to integrate the EU passport, ID card, driving licence and health card into one single biometric chipped card. Privacy concerns will be traded for convenience, at least that is what the authorities are hoping for.

Richard Thomas, the UK Information Commissioner, has said that he is afraid that we are "sleepwalking into a surveillance society", a fear that can be extended to the 450 million people in the EU.

The surveillance of communications: data retention

The third major issue is that of mandatory data retention. For years the law enforcement agencies have been lobbying for access to communications data but the opposition of civil liberties and privacy groups found a resonance in the mainstream media and in society at large. On 20 September 2001, just nine days after 11 September, the special meeting of the EU's Justice and Home Affairs Council put the issue back to the top of the agenda.

The proposal now under discussion would require communications and service providers to retain traffic data for all phone-calls, faxes, mobile calls (including their location), e-mails and internet usage for at least 12 months and to make this available on demand to any law enforcement agency - police, customs and immigration plus of course internal security agencies who do not already have access. The proposal also allows for the exchange of this data between agencies in different countries in the EU (and outside).

There are however a number of problems with the proposal. Changes in technology mean that service providers for internet and e-mails through ADSL provide unlimited usage and no longer need to keep a record of use (older technology relied on billing according to usage). Under the current proposal service providers would have to retained data which they no longer need and to keep it for at least 12 months (as opposed to 2-3 months under the older systems). So the question arises, who is going to pay for this additional work and storage the state or the companies?

The second major issue is the legal basis of the proposal. Both the Council and Commission Legal Services' Opinions state that the proposal has to be split into two different legal basis. One, covering the requirement for providers to collect and keep the data which requires "first pillar" legislation over which the European Parliament has "co-decision" powers (ie: it has to agree to the text). The other "third pillar" legislation on which the parliament is only "consulted" allowing law enforcement agencies to access to the data and to exchange it. At the moment the five governments who put the proposal forward, with the collusion of other governments, are seeking to ignore the legal position and are proceeding as if nothing is wrong.

The "principle of availability"

The planned wholesale surveillance of movement and telecommunications, backed by the introduction of fingerprinting just about everyone living in the EU and eventually storing all this personal data and biometrics on EU-wide databases, is to be complemented by the so-called "principle of availability".

All information and intelligence held nationally by law enforcement agencies in all 25 EU member states would, under this "principle", be available to all the other agencies. An unpublished overview report on this "principle" (EU doc no: 7416/05) says that EU citizens want "freedom, security and justice" and that:

"It is not relevant to them [citizens] how the competencies are divided (and information distributed) between the different authorities to achieve that result"

The report ends by suggesting that the end-game is not just for all EU law enforcement agencies to have access to personal data regarding law and order (including DNA and fingerprints data) but that they should also have:

"direct access to the national administrative systems of all Member States (eg: registers on persons, including legal persons, vehicles, firearms, identity documents and drivers licences as well as aviation and maritime registers"

"National administrative systems" no doubt will include personal medical records when these are available on a national database (as they will be in the UK from next year).

What is as dangerous is that the "principle of availability" will mean that the agencies will be "self-regulating" hiding misuse and abuse. The agencies will interpret and decide on data protection and legal restrictions on exchanging personal data. Where before any request had to be channelled through, and recorded by, national Ministries of the Interior (Home Office) who scrutinised them before authorisation (largely because the Ministries were legally and politically liable) now there is to be a "free market" in personal data without any data protection worth the name in place.

In the name of the "war against terrorism"

All of these measures would have been almost unthinkable five years ago but not now, in the name of the "war on terrorism" all are proceeding with unseemly haste - giving little chance for proper public and parliamentary debate.

It is consistently argued that the "law enforcement agencies" needs all these measures to fight "terrorism". There are many flaws in this argument. First, the front-line in combating terrorism are the intelligence and security agencies not the law enforcement agencies. It is they who collect SIGINT (signals intelligence), COMINT (communications intelligence) and HUMINT (human intelligence) - though the latter was significantly underdeveloped prior to 11 September 2001. In most countries these agencies have all the powers they need. While the law enforcement agencies, in respect of terrorism, play a secondary and supporting role.

Combating "terrorism" has, and is, used by governments and officials, the law enforcement agencies keen to extend their powers and status, and of course multinationals who are going to make billions out of the new technological demands of wholesale surveillance. Once established in Europe (and the USA) these new standards become the benchmark for "global standards" (and even more billions of profit).

The second flaw is that the "war on terrorism" is being used as a "smokescreen" to introduce wholesale surveillance. The European Council and European Commission argue that there is a continuum starting with terrorism, moving to organised crime and money-laundering, to serious crime and then crime in general (all crime). The surveillance of movement and of communications, compulsory fingerprinting, the creation of EU-wide databases, and uncontrolled access by law enforcement agencies are all justified by the "politics of fear".

Like all decisions taken in Brussels, which are rarely reported in any detail in the media, the reaction of civil society and people at large to this huge shift in the balance between the power of the state and the rights and liberties of the individual has yet to express itself. Hana Stepankova, of the Czech Office for Personal Data Protection, said:

"Privacy is one of the basic values of human life and personal data is the main gateway enabling entry into it. The citizens of countries that experienced a period of totalitarian regimes have that hard experience - when privacy was not considered of value and was sacrificed to the interest of the state."

Just as the political elite got it wrong over the EU Constitution it may be that when the people of Europe find out that they are now all "suspects" acquiesence may turn into opposition.

[This article appeared in Index on Censorship 3/05 in October 2005]

Filed 16 December 2005



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