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On Wednesday, February 12, the European Parliament’s first important vote on establishing a Digital Habeas Corpus to protect citizens from mass surveillance will take place.

US NSA surveillance program, surveillance bodies in various Member States and impact on EU citizens' fundamental rights and on transatlantic cooperation in Justice and Home Affairs

Link to live video stream

February 12, 2014

10:00 AM – 12:30 PM Eastern
07:00 AM – 09:30 PM Pacific   

European Digital Habeas Corpus

1. Conclude the EU-US Umbrella Agreement ensuring proper redress mechanisms for EU citizens in the event of data transfers from the EU to the US for law-enforcement purposes; [The Umbrella Agreement is a framework of cooperative treaties that regulate the exchange of data between the EU and US for law enforcement and judicial actions, and to share information about banking and other financial transactions.
2. Suspend the Terrorist Finance Tracking Program agreement until the Umbrella Agreement negotiations have been concluded; and all concerns raised by Parliament in its resolution of October 23, 2013 have been properly addressed.
3. Suspend Safe Harbor [commercial privacy policy] until a full review has been conducted and current loopholes are remedied, making sure that transfers of personal data for commercial purposes from the Union to the US can only take place in compliance with highest EU standards; [Safe Harbor is the EU Privacy Policy that American enterprises would have to observe to conduct business in Europe. It would fundamentally change the way that Google, Facebook, Yahoo, and other internet companies do business.]
4. Protect the rule of law and the fundamental rights of EU citizens, with a particular focus on threats to the freedom of the press and professional confidentiality (including lawyer-client relations) as well as enhanced protection for whistleblowers.
5. Develop a European strategy for IT independence (at national and EU level).
6. Develop the EU as a reference player for a democratic and neutral governance of the internet.

President François Hollande's plane
It’s hardly a coincidence that François Hollande will be travelling to San Francisco on Wednesday morning to meet with the CEOs of data gathering companies like Google, Yahoo, Facebook, and others, while the committee vote is taking place in Brussels. The Digital Habeas Corpus is being sold in Europe as an opportunity to reconfigure the internet with EU businesses, EU technology, EU security, and EU standards that respect the privacy of individuals.

Mass surveillance can have consequences. The loss of profits to American business corporations, the introduction of data nationalism, and a balkanized web.

Before a Digital Habeas Corpus is adopted and implemented, its opponents in the US and Europe will try to stop it. Gaming out its chance for success is tricky. It needs the acceptance of the ministers who represent the 28 member countries as well as approval by the European Parliament’s roll call vote.

1] The Parliament is consistently progressive on civil liberties issues.
2] The ministers will be swayed by the national security responsibility that resides with each member’s own government.

Now and in the months ahead, both sides will lobby the national governments. Since the US won’t end mass surveillance, all it can do is persuade individual EU members to accept the current situation as a status quo. That might succeed with the UK but last week’s attempt at courtship with Germany was punctuated with Asst Secretary of State Nuland’s exclamation, “Fuck the EU,” echoing across the continent. And France is France. A generation ago it abruptly ordered NATO forces off its territory because it couldn't abide the preferential bond it saw between the US and Britain. Ironically, Hollande’s asking price for the cooperation of France now would have to be its inclusion in the Anglos-only club known as the Five Eyes.  

If mass surveillance meets its downfall, it will be due to the blind arrogance of Americans who accept and agree on one element of the privacy debate. Foreigners are fair game. To Americans, it’s conventional wisdom, and beyond question. It’s also a tragic mistake.

When people still believed that the US was gathering intelligence for counter terrorism, it was easy to accept that foreigners would be fair game. Everyone believed surveillance was limited to the few, if any, bad guys that might turn up.

World map
However, the NSA practice of mass surveillance on 509 million Europeans has no grounding in the rule of law. It corrodes the mutual trust expected between allies. Mass surveillance isn't consistent with the cover of counter terrorism that’s used to justify it. It isn't expected between the partners of the NATO military alliance whose forces serve in Afghanistan today, side-by-side with Americans.      

To be clear, the draft resolution coming to a vote Wednesday states that the UK, France, Germany, and Sweden have intelligence agencies that may violate privacy rights too. The Digital Habeas Corpus seeks to restore mutual trust among the EU’s 28 members as well as mutual trust with external allies in North America.  

Mutual trust is the foundation for the treaties and agreements that hold the EU together. The North Atlantic Treaty alliance is still in force. Its signatories are obligated to defend and protect each other in certain situations. In that context, the US looks less and less like a trusted ally and partner. Its behavior would be expected of Russia or China. The EU doesn't have the kind of alliance with them that obligates mutual protection and even if it objects to the spying everyone assumes they do, it  has no leverage to address it with them, comparable to the leverage it has within its own circle and with the US.

From the EU side, the last seven months of efforts to restore trust look one-sided.

  • The US Treasury Dept refused to answer questions during an inquiry into allegations that it violated the Terrorist Finance Tracking Program (TFTP) agreement with the EU by misusing the access it was given to the Society for Worldwide Interbank Financial Telecommunications (SWIFT). The Treasury Dept admitted that it used the SWIFT system to intervene in the transactions of a bank customer in Europe for activities unrelated to terrorism. However, it would not comment on its procedures for identifying the customer, how the SWIFT data was used, and specifically if an unauthorized department or agent of the US government would have accessed it.
  • The US Treasury Dept also refused to comment on whether the US administration was aware of NSA mass surveillance activities before the disclosures by whistle blower Edward Snowden.
  • The US confirmed that the NSA collects a wide variety of electronically stored data, including content data and maintains a database of its collection known as PRISM. It refused to answer questions about the scope of its activities. After a series of meetings between EU & US officials, the EU co-chairs of the EU-US Working Group on Data Protection concluded that the legal framework in the US gives the NSA authority to collect all the information it can on any non-US person. This situation places Europeans in a second-class category compared to American citizens.
  • Last November, EU Justice Commissioner, Viviane Reding, met with Attorney General Eric Holder to talk about remedies for the deteriorating relations between the EU and US. Reding Holder and Reding issued a joint statement full of reassurances about the steps that would be taken to ensure privacy protection. He cited the work that PCLOB was doing as a good-faith example that “will help restore trust.” In January, PCLOB released its findings. The board said that  the NSA's bulk collection of phone records was illegal and ineffective against terrorism and that it should be ended. However, Holder insisted that the "program itself is legal" because the Foreign Intelligence Surveillance Court judges say so. “I think that those other judges, those 15 judges, got it right,” he said.

The United States of America signed the UN International Covenant on Civil and Political Rights on October 5 1977 and it was ratified on June 8 1992.

Article 14
Everyone shall be entitled to a fair and public hearing.
innocent until proved guilty according to law.

Article 17
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence
Everyone has the right to the protection of the law against such interference or attacks.

Article 18
Everyone shall have the right to freedom of thought, conscience, and religion.

Article 19
Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression.

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