From: <ek259@columbia.edu>
  To  : CPC <cpc@emoglen.law.columbia.edu>
  Date: Sun, 30 Apr 2006 11:56:50 -0400

Paper 2. Do Not Look to Europe for Inspiration

Do Not Look to Europe for Inspiration
Evangelia Kleftodimou

In 2002, in an article titled “Don’t Panic”, professor Bruce
Ackerman of Yale Law School noted the dangers of a permanent war on
terror and state of emergency for our fundamental freedoms and
asserted that Europe should take the lead in developing constructive
solutions and enacting statutes that contain tight limits on
governmental actions taken in the name of fighting terror(1).
Europe has not experienced 9/11 and the same obsession with terror.
It was thus seen by Ackerman as an appropriate forum to reflect upon
well-circumscribed laws arming the government against terrorism
while at the same time preventing it from exploiting momentary
panic to impose lasting restrictions on liberty. Ackermann expected
that laws emerging from Europe would have a worldwide positive
influence (2).

Europe however failed to set an example for America. In fact, it
adopted policies that are more intrusive than those of the US. The
recent EU Directive on Data Retention, introducing mass surveillance
of telecommunications, and the EU policies on biometrics are telling
examples of this. But it is not only the content of these laws which
is disturbing. It is also the legal framework in which they
operate—a framework characterized by both the absence of a
constitution and, often, the lack of judicial control and
parliamentary scrutiny.

With the recent enactment of the Directive on Data Retention, the EU
allowed its member states to compel telecommunication providers to
retain non-content traffic data for a period of up to two years and
hand it over to authorities upon request. The relevant authorities
are not required to seek judicial authorization to obtain the
information. The law was originally intended to combat terrorism,
and its adoption picked up momentum after the Madrid train bombings
and the attacks against the London subway system. But through three
successive rounds of revision, it has been substantially amended to
allow access, without court orders, to data related not only to
terrorism but to the investigation of any “serious” crime (3). Both
governments and private interests (especially the entertainment
industry) lobbied to expand the reach of the law (4). The EU
Directive on Data Retention is more intrusive than US law. No US
law imposes the mandatory retention of data. Further, in the US,
access to data voluntarily collected by telecommunication providers
requires judicial authorization except in cases of terrorism (5).

Another controversial EU initiative is the use of biometrics in
identification documents. In 2004, the Italian philosopher, Giorgio
Agamben, cancelled a trip to the US protesting the US-VISIT policy
requiring US visitors to be photographed, fingerprinted and
registered in a biometric database prior to entry—what Agamben
called “biopolitical tattooing”.  Europe today is introducing its
own VISIT policy (SIS II and VIS), effective in 2007, which also
requires visitors to the EU to have their biometric "identifiers"
stored in a central database (6). Moreover, like the US, the EU has
introduced biometric passports but went even further than the US in
requiring not only machine-readable facial images but fingerprints
as well (7). Further, it is planning to introduce biometric ID
cards for all European citizens (8).

There are several other areas where the EU far surpassed the US in
surveillance measures. Access to air travel records is another
example. While the US can access only records of foreign carriers,
the EU allows access to foreign and domestic carriers alike (9).
The surveillance of telecommunications through mandatory data
retention, the construction of files on air passengers and the use
of biometrics in travel and ID documents place the majority of EU
citizens under permanent surveillance. The relevance and
proportionality of such measures to the requirements of the war
against terror is highly questionable (10).

But what is more worrisome is the framework in which laws are
enacted. The EU is notorious for its democratic deficit and lack of
political transparency (11). Moreover, it has no constitution with
civil liberties provisions. The EU has adopted the Charter of
Fundamental Rights, but this is an instrument with no legal force.
The European Convention on Human Rights is equally non-binding on
the EU institutions (12).  These are permanent institutional
characteristics of the EU not specifically tied to the war against
terror. Recently, the executive branches of the national
governments acting through the EU Council of Ministers have been
taking advantage of a particular weakness in the system by adopting
surveillance measures using procedures that exclude the EU
Parliament and EU Court from the process. Measures are adopted
under the so-called “Third Pillar” dealing with police cooperation
in criminal matters. Under the “Third Pillar”, the Council of
Ministers has authority to adopt laws alone without any input from
the EU Parliament and such laws are not subject to judicial
scrutiny. Sometimes, the Council threatens to take measures under
the Third Pillar simply to coerce the EU Parliament to consent to
its wishes (or else be removed from the process) (13). National
governments can thus evade their domestic constitutions,
parliaments and courts by passing legislation through the EU, and
even circumvent the EU Parliament and Court through the “Third
Pillar”.

In his recent book, “State of Exception”, Giorgio Agamben argues
that the extension of governmental powers to deal with emergencies
has historically been a powerful strategy to increase state control
that can transform democracies into totalitarian states. He argues
that the state of exception, meant as a provisional measure, became
in the course of the 20th century a normal and lasting paradigm of
government (14). This state has a substantive and an institutional
component. It is characterized by the proliferation of measures of
surveillance and population control and an inflation of the powers
of the executive with a corresponding erosion of the powers of the
parliament and the judiciary (15). The growth of the executive to
deal with “emergencies” and the multiplication of wholesale
surveillance measures that target the entire population and not
just suspect groups is a phenomenon experienced today on both sides
of the Atlantic and the US cannot look to the EU for enlightenment.

Word count: 999


(1) Bruce Ackerman, Don’t Panic, London Review of Books, Vol. 24,
February 2002 at www.lrb.co.uk/v24/n03/acke01 .html.

(2) Id.

(3) The full text of the directive on data retention, which was
adopted in February 2006, can be found at
http://register.consilium.eu.int/pdf/en/05/st03/st03677.en05.pdf.

(4) http://arstechnica.com/news.ars/post/20051215-5780.html. Private
interests played their own role in widening the directive’s reach.
Disney, EMI, Universal Music and Sony BMG formed the Creative and
Media Business Alliance (CMBA) and lobbied to enlarge the scope of
the directive in order to protect their IP. Read the CMBA position
in a letter written to European MPE’s at
http://arstechnica.com/news.ars/post/20051126-5629.ht. See also,
Music-biz to highjack Europe’s data retention laws at
www.theregister.co.uk/2005/11/25/data retention/ .

(5) For an extensive comparison of the two regimes, see Gus Hosein,
Threatening the Open Society: Comparing Anti-terror Policies and
Strategies in the U.S. and Europe, December 13, 2005 at
www.privacyinternational.org/issues/terrorism/rpt/comparativeterrorreportdec2005.pdf.
While not having a mandatory data retention regime in place, the US
has nonetheless promptly expressed an interest to access the EU
retained records. See US Wants Access to Retained Data at
www.edri.org/edrigram/number4.7/usaccess.

(6) www.statewatch.org/news/ 2005/may/sisII-analysis-may05.pdf.

(7) www.europa.eu.int/idabc/en/document/3669/330.

(8) See EU Ministers Approve Biometric ID and Fingerprint Data
sharing at www.theregister.co.uk/2005/12/01
jahc biometric id standards.

(9) For a detailed comparison of such measures, see Gus Hosein,
supra.

(10) See www.statewatch.org. Statewatch asserts that 27 out of 57 EU
proposals have little or nothing to do with tackling terrorism –
they deal with  crime in general and population surveillance.

(11) Larry Siedentop, Democracy in Europe, Penguin Press 2000.

(12) www.dca.gov.uk/hract/hrafaqs.htm#part4.

(13) This is what the Council did to make the Parliament agree to
the EU data retention directive. There were two proposals at the
table. One proposal under the “First Pillar” where co-operation of
the EU Parliament was required and one under the “Third Pillar”
under which the EU Council of Ministers acts alone. The Council of
Ministers would have proceeded with the Third Pillar directive if
the EU Parliament did not agree with the First Pillar one. The EU
Parliament finally gave its consent. See Terrorism and Data
Retention: Persistent Predicaments in EU’s Policy at
www.libertsecurity.org/article509.html.

(14) Giorgio Agamben, State of Exception, University of Chicago
Press (January 2005).

(15) Id.

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