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Statewatch News Online: EU policy “putsch”: Data protection handed to the DG for “law, order and security”
28 March 2012
EU policy
“putsch”: Data protection handed to the DG for “law,
order and security”
- it is not "relevant"
for citizens to know how and what information about them is exchanged
In a little reported decision the full European
Commission meeting on 11 February 2005 the policy brief for data
protection in the EU was transferred from the Directorate-General
on the Internal Market to the Directorate-General on "Freedom,
justice and security". There was no public debate and no
consultation with national or European parliaments.
The Internal Market DG has been responsible for data protection
since the 1980s. In 1990 after pressure from national data protection
commissioners, the European Commission produced a series of proposals
(COM(90)314). Five years later in 1995 the EU Data Protection
Directive came into force. Its scope was limited to the "first
pillar" (social and economic affairs) to provide protection
to individuals whose data was held and processed by, for example,
commercial companies and banks. It did not cover the "third
pillar" (policing, law and immigration) and EU member states
relied to a greater or lesser extent (as in the UK) on the 1981
Council of Europe Convention. The Council of the European Union
(the EU governments) did set up a Working Party on Data Protection
in the "third pillar" in 1997 and this met until April
2001 when it was simply abolished.
The "Explanatory memorandum" for the Commission's decision
on 11 February 2005 simply says the following in justification:
"In order to strengthen coherence and visibility of the
Commission's activities in the field of data protection, Commissioners
Frattini and McCreevy propose to transfer that responsibility
from DG MARKT to DG JLS. This is also in view of the fact that
these activities fall increasingly into both the first as well
as the third pillar, and hence into the area of responsibility
of DG JLS."
Why would this transfer "strengthen coherence and visibility"?
This is simply nonsensical "Brussels-speak". Data protection
has always fallen under the "first" and "third"
pillars, it is just that the neither the Council or the Commission
has bothered to propose a law to protect peoples' right under
the latter. What the Commission’s "explanation"
alludes to - without spelling it out - is the fact that there
are a number of measures going through the EU at the moment on
"law and order" (under the rubric of the "war
on terrorism") which provide no protection whatsoever for
the individual. The draft articles in the draft Framework Decisions
on exchanging information and intelligence between law enforcement
agencies and on the mandatory retention and exchange of telecommunications
data simply refer to the secure transfer of the personal data
between the agencies. No rights are provided in either for the
individual to be told what information is held nor who it has
been transferred to (which can include non-EU states). This approach
is backed by the so-called "principle of availability",
namely that all information and intelligence held nationally
by law enforcement agencies in all 25 EU member states should
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 national
databases.
Tony Bunyan, Statewatch editor, comments:
"The EU is heading down the road of to a Big Brother
society where the law enforcement agencies will have access to
masses of personal and intimate data without any data protection
worth the name.
To hand this job to the DG that also deals with the “principle
of availabilty” is like putting the wolf in charge of the
sheep. While one Directorate in this DG is meant to provide protection
for peoples' rights, another one down the corridor will be ensuring
that peoples' rights do not get in the way of the "principle
of availability. This will lead to be an inevitable, and unacceptable,
conflict of interest"
Source: This article first appeared in Statewatch
bulletin, March-April 2005 (vol 15 no 2)
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