Data retention and decryption: Justice and Home Affairs Council wants more surveillance

EU member states will call for bypassing encryption also for counterterrorism and law enforcement. In addition, the entry of extremism suspects should be prevented and their assets frozen in the Union.

Tomorrow, the EU justice ministers will hold their regular meeting in Luxembourg, followed the next day by the interior ministers. Together, they form the Justice and Home Affairs Council, where member states adopt pending legislation or make policy statements.

In addition to the legislative projects, the interior ministers also want to adopt conclusions on the fight against terrorism on Friday. Under the title „Protecting Europeans from terrorism: achievements and next steps“, measures are called for in various areas. There are now several versions of the document, all of which have so far been classified. However, the British civil liberties organization Statewatch has posted an April 11 version online.

More involvement of secret services

Among the proposed „steps“ are EU-wide bans and asset freezes on „individuals or entities promoting radicalisation and violent extremism that may lead to terrorism“. Originally, „propaganda“ that leads to terrorism was also supposed to be able to lead to such measures. However, this wording has disappeared from the current version published by Statewatch.

The draft conclusions also call on the Commission to „consider legal developments“ to allow mutual recognition of entry bans for third-country nationals suspected of terrorism in all EU countries.

Similar to the visa procedure, national border authorities could exchange information on the grounds for imposing an entry ban before an external border is crossed. For this purpose, it may be sufficient if, in the assessment of secret services, the persons concerned „constitute a serious and reasonable threat to national security and/or public order“.

However, according to the Treaty on European Union, the EU has no competence to coordinate intelligence services. Nevertheless, there is another passage in the conclusions on cooperation between police and services. Already in the preamble, reference is made to the „counter-terrorism authorities“ providing information for processing asylum applications. A „dialogue“ of „immigration, asylum and counter-terrorism authorities“ within EU and Schengen states is proposed.

All-out attack on encryption

The conclusions emphasize the need to „advance work on the retention of data necessary to combat serious crime“. In the version now available, there is only talk of „connection data“. This means that the retention of data without any reason is not completely off the table, but rather an attempt to implement the restrictive rulings of the European Court of Justice.

Finally, the ministers of the interior launch another all-out attack on encryption. The planned conclusions call for a general regulation on „access to digital information, including encrypted data“. This accordingly „has become essential“ for the fight against terrorism.

Member states are therefore urged to „continue the exchanges with all stakeholders necessary for the establishment of a balanced framework for access to digital data, whether on the retention of connection data, access to encrypted content or the impact of new technologies such as artificial intelligence“.

„Progress Report“ with far-reaching demands

At present, it is still too early to call on the Commission to draw up such a legislative proposal. However, if the planned chat control to detect child pornography on encrypted devices becomes accepted, this would be the next step. Then the conclusions, as they are now to be adopted to „combat terrorism,“ would be used as justification.

It is unlikely to stop there, as documented by the „Progress Report on the Implementation of the EU Security Union Strategy“ presented the week before last. In an annex, the Council renews its call to allow „awful and targeted access to encrypted information in the context of criminal investigations and prosecutions“, so even in the context of general law enforcement. This is intended to improve the capacities of law enforcement and judicial authorities in digital investigations.

Foreseeably, the circumvention of encryption is thus to be made possible first in the fight against child abuse, then for combating terrorism, and subsequently for the general prosecution of criminal offenses. In this way, the Council is repeating its strategy of gradually introducing far-reaching surveillance measures, focusing first on issues that meet with popular approval. To this end, the planned conclusions are an important cornerstone.

Image: The German interior minister at the JHA Council in Brussels in March (Council of the EU).

Autor: Matthias Monroy

Knowledge worker, activist, editor of the German civil rights journal Bürgerrechte & Polizei/CILIP.