EU surveillance state

The EU is increasing the surveillance in its Member States. US authorities could soon also wiretap legally in Europe

The new European Parliament is to be constituted in September, after which the EU Commission will be re-elected. The governments of the member states use this phase to put far-reaching surveillance measures on track. This week the Justice and Home Affairs Ministers debated this on their Council meeting in Luxembourg.

Data retention is right at the top of the agenda. EU-wide, Internet and telephone providers are to be forced to store data on customers and their communications for years. If necessary, these could later be queried by police authorities or secret services. Although the European Union adopted a corresponding directive in 2006, it was declared invalid ten years later by the European Court of Justice (ECJ). As a result, many member states issued national regulations that differ in the depth of intervention or storage period. In other countries, including Germany, these were overturned by courts. The EU governments have therefore commissioned a study to explore how common EU legislation on data retention would be compatible with the ECJ’s requirements.

The Luxembourg judges had criticised, among other things, the fact that data retention was without cause and that it was all-encompassing. This contradicts the EU Charter of Fundamental Rights. According to a proposal by Europol, the EU police agency, a new directive could do without certain information, including the length of mobile phone antennas or the duration of its ringing tone. It would also be possible to limit storage to certain regions, for example only in countries where the EU poses a particular threat of terrorism. Europol’s annual situation reports on organised crime and terrorism could be used to determine these risk countries.

Other demands made by the Justice and Home Affairs Ministers include the surveillance of mobile communications. The new 5G standard is end-to-end encrypted by default. Neither the telephone providers nor the authorities can intercept connections. This also applies to the device numbers of the telephones. Under 5G the so-called IMSI catchers are therefore useless, with which the numbers of nearby telephones can be determined or tapped with a fictitious network station.

In Luxembourg, the ministers agreed to bring the desires of police forces and secret services to 5G in worldwide committees like the European Standardisation Institute (ETSI). On behalf of the German Government, the German Office for the Protection of the Constitution participates in a working group on criminal prosecution set up there. Together with authorities from Great Britain and the Netherlands, the secret service wants to ensure that even with 5G there is a back door for interception.

The EU justice ministers have also decided that the EU Commission will negotiate an agreement with the US government on data exchange. The plans are part of the „E-Evidence“ regulation, which aims to facilitate the issuance of „electronic evidence“ throughout the EU. This includes information on computers or mobile devices used, data on their users or details of when and where they connected to the Internet. According to a court decision, content data from cloud servers would also have to be released.

Despite the haste of the regulation on „electronic evidence“, it was no longer adopted by the old EU Parliament. The proposal to extend the exchange to the USA presents the new EU Parliament with a fait accompli. The Trump administration wants that EU-based Internet providers must also cooperate with US authorities. The US demand even goes beyond the „E-Evidence“ regulation: Internet companies should also grant police forces and secret services from the USA access „in real time“. Then the US authorities could legally intercept Internet-based communication in Europe.

Image: Taylor Vick on Unsplash