European directive: worrying expansion of anti-terrorism scope
Paris, 1 April 2016 — While tragic attacks struck the heart of the European Union, the directive on combating terrorism, currently being discussed by the European Parliament, could speed up the implementation of security policies across the whole Europe. La Quadrature du Net is concerned about a Europeanisation of the French Anti-Terrorism drifts.
Many European countries, including France, engaged in an headlong rush into repressive measures and are now seeking to transpose their recently adopted national surveillance measures to the European level. The draft European directive, tabled on 2 December 2015, is imprecise and focuses on four points:
- The harmonisation of the criminal response and definition of offences that constitute a terrorist act, financing and preparation of acts of terrorism;
- Measures to limit movement to foreign countries with the purpose of committing terrorist acts;
- Fighting against discourses that glorify terrorism, or encourage terrorist acts, especially on the Internet;
- Support for victims of terrorism.
From the outset, the draft Directive pushes against the respect of fundamental rights: the 2002 Framework Decision that still outlines EU antiterrorism policy underlines (Art. 10) that every antiterrorism policy must comply with the Charter of Fundamental Rights of the European Union. However, no reference is made to the importance and the need to comply with the Charter in the new draft Directive. Monika Hohlmeier (EPP1, Germany), rapporteur in the European Parliament, has included some references to fundamental rights in her amendments, however they fall short of today's applicable standards. In addition, the report released 9 March - not yet adopted - suggests the addition of numerous measures that would infringe the fundamental rights to freedom of expression and information, including the implementation of measures to block websites.
Each and every one of the main axes of this directive (criminal justice harmonization, measures related to the movement of people, Internet-related measures, and victim support) has potential repercussions on fundamental rights. Nonetheless, the main point on which La Quadrature du Net will work during the legislative process is the third item: measures related to the Internet and the rights to freedom of expression and information.
Again, the Internet is presented as a tool for recruiting and radicalising terrorists. The Internet is once more used as an scapegoat for the many failures reflected in recent mass murders, and is subject to unacceptable proposals for censorship.
- The rapporteur suggests to establish systematic censorship of websites "publicly inciting to commit terrorist offenses", forcing telecom operators to block access2 This type of measure has already been proven ineffective in France, since the law against terrorism of 2014, and is a strong attack on freedom of expression and information. Moreover, the proposed amendment does place a condition for the intervention of a judge, and therefore allows the general use of administrative blocking, which lacks transparency and makes it increasingly difficult to make use of the due process rights. Appeals have been launched in France by the "Exegetes amateurs" against these blocking measures. Following their rejection by the Council of State, these appeals will be brought before the European Court of Human Rights.
- The will to systematically create special censorship3 units to identify and remove illegal content creates a precedent for administrative censorship with blurred boundaries that will surely be expanded to other offences. Once more, France is one of the actors inspiring (fr) these measures of extra-judicial censorship.
- One of the proposed recitals criticises encryption for complicating the collection of "electronic evidence"4 This proposal is extremely worrying, especially considering that the Council of the European Union is getting ready to table (in June) specific measures on encryption. These simple-minded criticisms use the terrorist attacks to justify an unprecedented challenge to the right to remain anonymous (fr), and call into question the very principle of confidentiality of communications, and hence the protection of privacy, freedom of expression, as well as computer security and of all trade and transactions that use a computer.
The draft directive, proposed by the European Commission, fails to provide an effective limit to the impact on fundamental rights that Article 6 of the Treaty on the European Union guarantees. Monika Hohlmeier, rapporteur of the European Parliament, tabled Amendment 26 that would ensure that researchers and political activism – should it be "radical"5 – should not be hindered by anti-terrorism measures, but this proposal is insufficient. The threat to our fundamental rights goes beyond freedom of speech: the right to have access to information, the right to privacy, the right to a fair trial, among other rights, cannot simply be discarded in the name of fighting terrorism.
From a procedural standpoint, we would also like to remind that no impact assessment has been carried out on any of these aspects. This means that the European Parliament could implement repressive measures that would lead to a historical rollback of European Union’s citizens’ rights without any prior analysis, against the opinion of international organizations such as the United Nations Human Rights Council6 ,the Council of Europe7 and the European Parliament itself who, in many reports published in the past months8 has objected to many of these very measures.
Terrorism that strikes our living space, the freedom of the press and our democratic institutions is clearly trying to destabilise the system that is based on the rule of law and freedom. The fight against terrorism must not help this destabilisation by flouting the founding treaties and laws that protect these very rights and freedoms. France, which sinks further and further into a worrying security trend, must not force its measures of surveillance and censorship upon its European partners. La Quadrature du Net calls on MEPs to work together to strengthen the foundations and values of the European Union, instead of being co-conspirators of their disintegration.
- 1. European People Party, political group that includes representatives from the French Les Républicains, or from the German CDU, for example.
- 2. Amendments 6 and 40>. Amendment 40 establishes Article 14bis, titled "Measures against websites publicly inciting to commit a terrorist offence" and reads as follows:
" 1. Member States shall take the necessary measures to ensure the prompt removal of webpages publicly inciting to commit a terrorist offence, as referred to in Article 5, hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
2. Member States may take measures to block access to webpages publicly inciting to commit a terrorist offence towards the Internet users within their territory. These measures must be set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is necessary and proportionate and that users are informed of the reason for the restriction. Those safeguards shall also include the possibility of judicial redress."
- 3. Amendment 3: "Every Member State should set up a special unit tasked with flagging illegal content on the internet and with facilitating the detection and removal of such content. The creation by Europol of the Internet Referral Unit (IRU), responsible for detecting illegal content and supporting Member States in this regard, while fully respecting the fundamental rights of all parties involved, represents a significant step forward in this regard. Member States' units should also cooperate with the Union counter terrorism coordinator and the European Counter Terrorist Centre within Europol, as well as with civil society organisations active in this field."
- 4. Amendment 20: "A Eurojust report of November 2014 notes that the growing sophistication and wider use of anonymisers, proxy servers, the Tor network, satellite links and foreign 3G networks create additional challenges to the gathering and analysis of electronic evidence, which are rendered even greater by the storage of data in the cloud. Member States should therefore cooperate among each other, in particular through Eurojust, to identify and remove possible obstacles that may occur in mutual legal assistance requests for electronic evidence.".
- 5. Amendment 26 establishing a recital 19bis: "Nothing in this Directive should be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions falls outside the scope of this Directive and in particular of the definition of public provocation to commit terrorist offences."
- KAYE, David, 2015. Report on encryption, anonymity, and the human rights framework [online]. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Geneva. United Nations Human Rights Council. [Last consulted on 1 June 2015]. URL: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/CallForSubmission.aspx.
- KAYE, David, EMMERSON, Ben et CANNATACI, Joseph, 2016. Public statement: UN rights experts urge France to protect fundamental freedoms while countering terrorism [online]. Geneva. Human Rights Council of the United Nations. [Last consulted on 25 March 2016]. URL: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16966&L...
- MUIŽNIEKS, Nils, 2015. 2015(1) : Positions on Counter-Terrorism and Human Rights Protection [online]. Position paper of Commissioner for Human Rights. S.l. Council of Europe. URL : https://www.coe.int/en/web/commissioner/thematic-work/counter-terrorism.
- OMTZIGT, Pieter, 2015. Mass Surveillance [online]. Strasbourg. Parliamentary Assembly of the Council of Europe. [Last consulted on 26 January 2015]. URL: http://www.assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=5387&lan....
- Mass Surveillance: Part 1 - Risks and opportunities raised by the current generations of network services and applications : http://www.europarl.europa.eu/stoa/cms/home/publications/studies?referen....
- DE GRAAF, van den Berg P., 2014. PE 527.409: Mass Surveillance: Part 2 - Technology Foresight, options for longer term security and privacy improvements: http://www.europarl.europa.eu/stoa/cms/home/publications/studies?referen....
- MORAES, Claude, 2015. 2015/2635 : European Parliament resolution on the follow-up to the European Parliament resolution of 12 March 2014 on the electronic mass surveillance of EU citizens [online]. Strasbourg. European Parliament. URL: http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=B8-2... ("Welcomes the initiatives of the private ICT sector in terms of developing cryptographic security solutions and internet services that improve privacy; encourages the continued development of user-friendly application settings helping customers manage what information they share with whom and how; notes that various companies have also announced plans to enable end-to-end encryption in response to mass surveillance revelations")