A strange — and strangely unnoticed — trend is emerging in the evolving global response to massive 2013 leaks about US surveillance activities. While our European cousins talk privacy reform, the United States is actually moving ahead with it, albeit more slowly than many would like. As the American side of the Atlantic inches toward self-restraint, many European governments are seeking sweeping new spying powers. Europe is at risk of falling behind the US in privacy reform.
Following two post-Snowden reviews of US surveillance activities, the United States announced new limitations to its electronic surveillance activities, including additional privacy protections for Europeans and other non-US citizens, which few European countries currently afford Americans. Much-criticized US surveillance activities, including the bulk telephone metadata program, are set to expire in days unless Congress intervenes. Meanwhile, the bipartisan Law Enforcement Access to Data Stored Overseas (LEADS) Act and similar draft laws are moving through Congress and garnering broad support from technology companies, business organizations, and privacy and civil liberties advocacy groups.
Meanwhile, across the pond, key European Union member states, some harshly critical of US spying, are seeking dramatically enhanced surveillance powers in the wake of the horrific Charlie Hebdo attacks in January.
France’s lower house of parliament just passed a sweeping new spying bill that wouldempower French intelligence to deploy hi-tech tools such as vehicle tracking and mobile phone identification devices against individuals without judicial oversight; allow the government to force communications companies (including US companies) to sift through massive amounts of phone and internet metadata for potential terrorist communications and report results to the government; and give French intelligence services real-time access to “connection” data of possible terrorists.
Prior to his reelection, British Prime Minister David Cameron promised to authorize British intelligence agencies to read “all messages sent over the Internet,” in a package of legal provisions called by critics the “snoopers’ charter.” This comes amidst admissions by British intelligence of extensive electronic communications surveillance and sophisticated “Computer Network Exploitation” (CNE) hacking, all without judicial supervision. At the same time, a parliamentary inquiry approved of ongoing British intelligence bulk data collection.
And while Ireland recently filed a brief opposing the enforcement of US search warrants for data stored in Ireland, the country recently joined Britain and Germany as “one of Europe’s top three offenders in undermining citizens’ rights,” according to a privacy lobbying group purporting to analyze 11,000 pages of confidential European Council documents concerning EU governments’ “secret” efforts to weaken EU privacy reforms.
Reports citing leaked classified files indicate that “Germany’s external spy agency saves tens of millions of phone records every day,” collecting metadata on some 220 million calls daily, and carrying out “surveillance of international communications sent by both satellites and internet cables that pass through one of several key locations.” Such efforts reportedly are targeted, in significant part, at non-German citizens. Other European nations also are using or seeking broad surveillance powers in the wake of the Paris massacre and a number of smaller terrorist attacks and near misses. Even before the Paris attacks, then-EU Justice Commissioner Viviane Reding, a harsh critic of reported US surveillance activities, called out her continental colleagues for their hypocrisy: “If the EU wants to be credible in its efforts to rebuild trust…it also has to get its own house in order.”
Where you stand depends upon where you sit — it’s not surprising that Europeans critical of US surveillance activities in the wake of the September 11, 2001 attacks are today, after less severe (though no less despicable) attacks on their own soil, seeking powers every bit as sweeping as those enacted in the United States. But it’s nonetheless apparent that, just as privacy reform appears to be trending in the United States, government snooping is ascendant in Europe, the rhetoric of some EU politicians notwithstanding.
So, I present a neighborly challenge to American friends and allies in Europe: Will you work to reform the Mutual Legal Assistance Treaty (MLAT) criminal evidence sharing system as the United States has begun to do with the LEADS Act? Will you expand the rights of Americans with regard to your governments’ surveillance as the United States has begun to do for your citizens? No nation will unilaterally disarm and none of us are safer when some are more vulnerable than others. Our nations may be working to reform their own surveillance practices to better protect privacy, but their efforts will only be sustainable if we work together. US and European leaders should accelerate efforts towards true reform, without sacrificing our collective ability to defeat the growing threats to all of us. And perhaps tone down the cross-Atlantic attacks in the bargain.
Bryan Cunningham is an information security, privacy, and data protection lawyer as well as senior advisor of The Chertoff Group, a security and risk management advisory firm with clients in the technology sector. Formerly, he served as a US civil servant, working for the CIA and serving as Deputy Legal Advisor to National Security Advisor Condoleezza Rice.
Authors: Bryan Cunningham
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