Europol prepares for "global" exchange of data

Statewatch bulletin, vol 8 no 5 (September-October 1998)

The next step in the EU's plans for Europol to exchange data with non-EU states is a proposed "Draft Model agreement on cooperation with Third States" (see Statewatch, vol 7 no 6 & vol 8 no 2). This could lead to Europol acquiring a "global role" in the exchange of police intelligence and information. Europol become operational, replacing the Europol Drugs Unit set up in June 1993, on 1 October 1998.

This "Draft Model agreement" on the exchange of data between Europol and non-EU states has been drawn up by Europol itself and sent to the Europol working group - one of the many working groups under the K4 Committee. It is an indication of how far removed EU government Ministers have become from policy formation that police officers seconded from their national police forces are drafting important initiatives. Most of the "secondary" measures governing Europol's operations have been drawn up in the Europol working group comprised of interior ministry officials, national police representatives and a Europol representative.

Another example of the "delegated" authority to Europol's "self-regulating" powers is the fact that this "Model agreement" is to be supplemented by a whole series of "Memorandum of Understandings" agreed between Europol and the "Central Service" (the equivalent of an EU National Criminal Intelligence Service) of each non-EU state within whom data is to be exchanged and with other organisations within the non-EU member states. The "Memorandum of Understandings" will cover: i) "contacts between representatives of their respective organisations" (Article 4.2); ii) "other organisations" (Article 4.2); iii) a "separate memorandum of understanding" will be made between Europol and the "Central Service" to cover "technical arrangements" and "secure communications"; iv) "assessment of specified types of data and specified sources".

The only reference to any higher authority in reaching these "Memorandum of Understandings" is that the Europol Management Board, comprised of interior ministry officials, "shall be informed of such general agreements" (Article 9.6). In time these "Memorandum of Understandings" could number hundreds depending on the extent of "Understandings" with "other organisations" in non-EU member states. In time too Europol may be exchanging data with dozens of countries and hundreds of "organisations" across the globe.

The scope of data to be exchanged appears at first sight to be limited and is set out in Article 3.1, "Areas of criminality to which the Agreement applies", which lists: "a) unlawful drug trafficking"; b) "trafficking in nuclear and radioactive substances"; c) "illegal immigrant smuggling"; d) "trade in human beings"; e) "motor vehicle crime". It will also extend to money-laundering and the contentious "Related criminal offences" category in the Europol Convention.

However, in Article 3.3 the list of criminal offences to be covered is the full list in the Europol Convention - 18 sets of offences plus money-laundering and related offences. This list has already grown since the Europol Convention was signed in July 1995 and the Council of Justice and Home Affairs Ministers is empowered, under the Convention, to add to this list without any reference to the European or national parliaments.

Exchanging "information"

The "Memorandum of Understanding" will cover "structured and unstructured forms" of information (hard fact) and intelligence (from surveillance or supposition). The information supplied to, and held by, Europol will be subject to the limits of the "national legislation" of the non-EU state providing it. It cannot, of course, be assumed that the "national legislation" of such a state will include proper limits on the gathering of data let alone civil liberties. The only limit on the data to be held by Europol is that it should not have been gathered in "obvious violation of human rights". Article 7.8 says that: Europol will not accept any liability, nor any claim for compensation of damages, in respect of personal data which, in accordance with this Article, remain under the responsibility of (Third State X) and subject to its national legislation.. The same concept of immunity from any liability is in the "optional" Article 14 on "Europol Liaison Officers in (Third State X)". When the Protocol on Privileges and Immunities, which is attached to the Europol Convention, is finally ratified by all EU national parliaments it can be expected that this article will be included. Article 14.6 states that within the territory of the "Third State X" Europol liaison officers "will enjoy the same privileges and immunities as those accorded by (Third State X) to diplomatic agents of comparable rank of diplomatic missions.."(see Europol: Confidentiality Regulations, Select Committee on the European Communities, House of Lords, Sub-Committee "E", HL no 9, 17.6.97).

Assessing the quality of data

The "Model agreement" uses the term "information" in Articles 9 & 10. In the context this has to be taken to mean both "information" (hard facts) and "intelligence" (based on surveillance and/or supposition).

Article 9.1 sets out the assessment criteria for the "source" of the information into four categories. The first is where there is "no doubt of the authenticity, trustworthiness and competence of the source", the second where the source "has in most instances proved to be reliable". However in the third and fourth categories it is highly questionable whether such information should be passed to non-EU member states, let alone given any status by Europol itself. These two categories are defined as follows: c) Source from whom information received has in most cases proved to be unreliable; d) The reliability of the source cannot be assessed.

Article 9.2 additionally defines the criteria of "reliability of the information". The first two criteria are "where the accuracy is not in doubt" and where the information "is known to the source but not known personally to the official passing it on" (the latter could refer to information sent from an EU national Criminal Intelligence Service to Europol). Again the third and fourth categories offer grounds for concern. The third is where the information "is not known to the source but corroborated by other information already recorded" (Article 9.2.c). The last criteria is simply "Information which is not known personally to the source and cannot be corroborated" (Article 9.2.d).

Article 9.3 says that "Third State X" is to use the very same criteria "as far as possible".

When Europol receives data from "Third State X" with no assessment it will "attempt" to assess the reliability of the source and information itself. Where this is not possible it will be graded in the fourth category in each case (Article 9.5). But even this has a let-out clause - Europol and "Third State X" are allowed to agree, via a "Memorandum of Understanding", in "general terms" to assess "specified types of data and specified sources."

Article 10 lays down that the "Central Service" of "Third State X" will inform Europol if "the information supplied is not accurate or no longer up to date". Again there is a let-out. Europol will not delete inaccurate or out of date information if it has "further need" of it for its "analysis" files or if it has "further interest" in this information because Europol has more "extensive" intelligence than that supplied by "Third State X".

Given the criteria set out it does not take much imagination to foresee a bizarre chain of events which links uncorroborated information which is inaccurate, and maybe out of date, being held by Europol and then passed to "Third State Z" when scrambled with other "intelligence" data.

Taken together these "Model agreements", and a plethora of "Memorandum of Understandings", backed by overseas liaison officers will establish Europol as a major force. The FBI is expanding its overseas "offices" from 25 (1996) to 46 by the year 2000 (see Statewatch vol 6 no 5). The EUROPOL-FBI (EU-US) axis is poised to dominate the global law enforcement community in the coming decade.

Sources: Draft Model agreement on cooperation with Third States, EDU/Europol to Europol Working Party, ref: 7856/98, Limité, EUROPOL 51, 28.4.98.