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EU Inquiry into Electronic Mass Surveillance draws its conclusions

For the past five months the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) has been conducting an investigation into electronic mass surveillance of, and conducted by, EU member states. This inquiry, prompted directly by Edward Snowden’s revelations, held the first of its fifteen hearings on 5 September 2013 and is now making amendments to the draft report prepared by Inquiry rapporteur, MEP Claude Moraes.

The hearings

Over the course of fifteen hearings, a range of witnesses gave testimony to the inquiry – among them journalists, whistleblowers, lawyers, officials and technical experts. A statement from Edward Snowden was delivered on 30 September.

The focus of several hearings was prompted directly by particular revelations as they appeared in the press (for example GCHQ’s attacks on European telecoms company Belgacom). As such the proceedings often provide valuable additional insight to the published material.

A summary of subjects covered in each of the hearings follows below. Further detailed information has been made available by the European Parliament.

5 September 2013 (agenda, video [youtube]) included testimony from journalists Jacob Appelbaum,  Duncan Campbell and Guardian editor Alan Rusbridger.

12 September 2013 (agenda, video) – this session was held largely in camera and focused on feedback from the first two meetings of EU-US ad hoc working group on data protection, whose final report was published in November.

24 September 2013 (agenda, video 1, 2 [youtube  1, 2, 3]) – focused on the US interception of SWIFT banking data, in contravention of the 2010 EU-US TFTP Agreement, the third meeting of the EU-US ad hoc working group on data protection, the effectiveness of surveillance in fighting crime and terrorism and Caspar Bowden‘s report on the impact of US surveillance programmes on the privacy of EU citizens.

30 September 2013 (agenda, video [youtube]) – heard from intelligence whistleblowers Thomas Drake, J. Kirk Wiebe and Annie Machon. A statement from Edward Snowden was delivered by Jesselyn Radack.

3 October 2013 (agenda, video [youtube]) – focused on GCHQ’s operations against Belgacom.

7 October 2013 (agenda,video [youtube]) – looked on the impact of US surveillance on European data protection laws, particularly safe harbour provisions.

14 October 2013 (agenda,video [youtube]) – investigated whether operations revealed by Edward Snowden contravened domestic or international law and heard about some of the legal challenges that have been lodged within the EU.

7 November 2013 (agenda,video 1, 2  [youtube 1,2]) – turned to the surveillance practices of EU member states, their compatibility with EU law and the effectiveness of Parliamentary oversight at the national level, particularly in the UK.

11 November 2013 (agenda, video [youtube]) – included testimony from US Congressman Jim Sensenbrenner – co-sponsor of the USA Freedom Act which, if passed, would end the NSA’s domestic metadata collection – and Dutch and Swedish parliamentarians on domestic intelligence oversight procedures. The inquiry also received evidence from Microsoft, Google, Facebook and Apple.

14 November 2013 (agenda, video  [youtube]) – focused on the IT security of EU institutions and intelligence oversight in Belgium and Denmark.

18 November 2013 (agenda, video [youtube]) – revisited the issue of the legality of surveillance, together with the degree to which EU and national powers should interact in this area. The inquiry also heard about Polish reaction to the Snowden revelations.

2 December 2013 (agenda, video [youtube]) – the inquiry heard evidence on intelligence oversight procedures in Norway.

5 December 2013 (agenda,video [youtube]) – revisited the IT security of European institutions and received testimony from the Council of Bars and Law Societies of Europe on the impact of surveillance programmes on legal privilege.

9 December 2013 (agenda, video [youtube]) – the inquiry heard from Viviane Reding,the Vice President of the European Commission, on EU-US discussions on data protection and from a member of the Council of Europe’s Parliamentary Assembly on its Resolution 1954 on whistleblowing and public access to official information.

18 December 2013 (agenda, video 1, 2 [youtube]) – the inquiry heard testimony on technological means of protecting privacy and from journalist Glenn Greenwald.


Refusals to attend

Those who declined an invitation to address the inquiry include NSA Director General Keith Alexander, Director of GCHQ Sir Iain Lobban and representatives of Yahoo and BT.

The draft report

The report finds that the mass surveillance activities of the US and certain EU member states have “profoundly shaken” the trust between countries, that their extent cannot be explained by counter-terrorism activities and elements of those operations – particularly economic espionage and extra-territoriality –  are unlikely to be compatible with EU law. It calls on “certain EU member states, including the UK, Germany, France, Sweden and The Netherlands” to ensure that their domestic oversight regimes are adequate and singles out the UK’s legislative regime for particular criticism. It also calls for a suspension of EU-US data sharing until rules and technical standards have improved.

The report states that the threats to European citizens’ privacy are “unprecedented” and maintaining Europe’s “indpendence and self reliance” will require an outlay of human and financial resources, suggesting the development of independent European initiatives in cloud computing. It also asserts the importance of press freedom and identifies the detention of David Miranda as a breach of the fundamental right of freedom of expression.

While the report will not be binding even when the final version has been voted on on 23 January, it increased the international pressure for reform of intelligence practices and oversight procedures within EU member states.  In other areas where the EU has direct legislative competence, such as data protection, some changes to existing EU-US arrangements are likely and the need for them is accepted beyond the European Parliament.

Snowden invited to testify

Edward Snowden has already provided a short statement to the inquiry. On 9 January, after some speculation, a formal invitation was issued for Snowden to testify to the inquiry via video link, in a live question and answer session. As indicated by LIBE committee member Jan Philip Albrecht, it is not certain that Snowden will be able to accept this invitation before the final vote on the report later this month.

In 7 February, the Green / EFA grouping in the European Parliament confirmed that Edward Snowden had expressed a willingness to testify to the Inquiry, but that it was still to be decided how this could be facilitated. Snowden’s evidence to the Inquiry was delivered in writing and published on 7 March 2014.