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Introducing this week's theme: Privacy and surveillance in 2016

Civil society and the judiciary slowly but steadily brought gains to the protection of privacy after 9/11 that political responses to the Paris attacks and the refugee flows in 2015 and 2016 could just sweep aside. How does the relationship between surveillance and privacy currently stand?

Recent years have witnessed a strong backlash by civil society, the judiciary and the European Parliament against the paradigm of generalised, mass surveillance imposed globally after 9/11. The Snowden revelations have triggered a far-reaching debate on the need to put an end to this paradigm of surveillance and to seek ways of ensuring the meaningful protection of the right to privacy.

The strongest responses upholding the right to privacy have emerged from the judiciary. National constitutional courts, the European Court of Human Rights and the Court of Justice of the European Union, in seminal rulings such as Digital Rights Ireland and Schrems, have effectively rejected the prevalent model of mass surveillance and focused on the need to uphold the right to privacy in an effective way.

Yet at the same time when the European judiciary has made key steps towards reconfiguring the relationship between privacy and surveillance in this manner, political developments in Europe, including the Paris attacks and the so-called refugee crisis, have led to the re-securitisation of the surveillance/privacy debate. Political responses to the Paris attacks and to refugee flows to Europe have led to the adoption of emergency legislation in a number of EU Member States, and proposals for such legislation at European Union level, which aims to re-assert the primacy of security and which will have the result of the dismantling of key privacy protections.

Whatever gains civil society and the judiciary have slowly but steadily brought to the protection of privacy after 9/11, political responses to the Paris attacks and the refugee flows in 2015 and 2016 can easily take away. The main aim of this guest week on Privacy and Surveillance in 2016 is to assess the current relationship between surveillance and privacy in the light of these opposing tensions.

The guest week is hosted by the Criminal Justice Centre of Queen Mary, University of London. In my capacity as the Director of the Centre and the Head of the Queen Mary Law Department, I am delighted with the opportunity given to host the work of a number of my colleagues and Criminal Justice Centre members on the openDemocracy website. In addition to the contributions of Criminal Justice Centre members and affiliates, we are honoured to host a number of contributions by leading academics and institutions, including in particular a contribution by the Council of Europe Commissioner for Human Rights, Nils Muižnieks.

Monday

The week will kick off with an article of mine making a case for the development of a global privacy regime. Such a regime is necessary to address the inherent inadequacy of national, territorial laws on privacy to address phenomena of transnational and extraterritorial surveillance practices.

The article argues that European Union law can provide useful benchmarks in this context: it puts forward four key principles which should underpin this global privacy regime; the applicability of global privacy rules to everyone; the adoption of a broad definition of privacy to embrace not only the processing, but also the very collection of personal data; the need to ensure an effective remedy to everyone affected by privacy violations; and the need to roll out a model of independent privacy supervision around the world.

Issues arising from independent supervision are central to the contribution of Hielke Hijmans, who has first hand expertise from his long experience working for the office of the European Data Protection Supervisor. Hielke stresses the value that independent supervision can add to the effective protection of privacy on the ground and highlights the importance of the role of independent supervision authorities envisaged by the Court of Justice in its ruling in Schrems. He argues convincingly that independent authorities must be proactive in order to ensure fully the protection of privacy on the ground. Indeed, independence brings responsibility. Providing full attention to individual complaints will serve not only to enhance effective remedies for violations of privacy, but also at the same time enhance the very legitimacy of independent supervision authorities.

Tuesday

On Tuesday, we host two contributions focusing on different aspects of potentially mass surveillance. Richard Ashcroft focuses on privacy after social media, and draws lessons from healthcare and bioethics. It can be argued nowadays, he suggests, that it is in our public performances that our true selves lie, and points out that it is in this context in which we are really forced to ask whether our traditional concept of privacy is becoming redundant. 

However, he adds that it would be wrong to think that we are moving to a no-privacy society. Instead what we are seeing is a transformation of our concepts of self, the domains of intimacy which we value and the kind of privacy we set store by. 

Niovi Vavoula provides an insightful analysis of the human rights implications of recent proposals for a European Union ‘PNR’ system, namely a system whereby airlines flying into the EU (and perhaps those flying on intra-EU flights) provide to state authorities a wide range of personal data on all their passengers for security purposes. This is another paradigm of generalised surveillance which has been very controversial since its introduction by the United States post-9/11, but whose perceived necessity resurfaced in Europe prominently after the Paris attacks. Niovi’s insightful analysis addresses the impact of the EU PNR system not only on privacy, but also on citizenship. It is not only suspects, but all passengers who are being monitored under this new system.

Wednesday

The articles appearing on Wednesday focus on the surveillance of specific categories of populations. Elspeth Guild addresses the issue of surveillance in the refugee crisis. She debunks the myth of the existence of massive, unpredictable flows of refugees into Europe justifying intensified surveillance and enforcement action at EU level. She provides an expert and critical analysis of the claims that the re-introduction of border controls in the Schengen area would constitute an effective response to managing refugee flows and puts forward the example of Poland as an example of good practice dealing with flows from Ukraine, in an inclusionary paradigm centered on the provision of work and residence permits to third country nationals. Francesco Ragazzi on the other hand focuses on the impact of surveillance on specific ‘suspect’ communities. He puts forward the concept of policed multiculturalism, which removes decisions regarding community relations from political discussion by presenting them as matters of security. Francesco uses the example of the UK and the PREVENT strategy as a case-study of policed multiculturalism and highlights the juxtaposition between ‘suspect’ and ‘trusted’ Muslims this example entails.

Thursday

The contributions appearing on Thursday examine surveillance in the context of the activities of intelligence services. Eric King focuses on the issue of raw intelligence sharing in the Investigatory Powers Bill in the UK. He demonstrates that, notwithstanding a number of issues highlighted in a number of reports on the Bill related to intelligence shared with third countries, the draft Bill has made limited progress in addressing these issues and concerns. 

The challenges for privacy in a system which does not address effectively and in sufficient detail the sharing of intelligence, in particular with third countries around the world, poses acute challenges for privacy and the rule of law and may serve to undermine any safeguards introduced related to purely internal intelligence activities. 

The need for a global approach is highlighted by Didier Bigo in his contribution. He argues for the emergence of a transnational level playing-field by the development of a Code of Conduct for oversight bodies in Europe. What can be considered as the second phase of the Snowden disclosures circles around the nature and purpose of oversight.

Friday

Our closing contribution is a powerful call by the Council of Europe Human Rights Commissioner, Nils Muiznieks, on the need for human rights not to buckle under mass surveillance. The Commissioner lists a number of examples where national legislation in European states has been toughened in recent months to increase state powers in the field of security. He puts forward five parameters which are essential to safeguard human rights in this age of re-securitisation.

In addition to the need to respect the right to privacy, these parameters also include more broadly a series of rule of law safeguards underpinning the operation of intelligence services. These include the independent scrutiny and review of intelligence services, the prior authorisation of acts of surveillance and ex post judicial control.

This article is published in association with the Criminal Justice Centre at the Department of Law, Queen Mary University of London. The CJC’s members are drawn from both the legal profession and academia, researching the impact of securitisation on human rights. The Centre is one of the coordinating institutions of the European Criminal Academic Network.
About the author

Valsamis Mitsilegas is Professor of European Criminal Law, Director of the Criminal Justice Centre and Head of the Department of Law at Queen Mary University of London. He has published widely in the fields of security and human rights, surveillance and privacy, European criminal law, immigration, asylum and borders, and on legal and policy responses to transnational crime and terrorism. He is a regular advisor to governments, parliaments, EU institutions and NGOs and is currently member of the European Commission’s Expert Group on European Criminal Policy. His recent monographs include The Criminalisation of Migration in Europe (Springer, 2015) and EU Criminal Law After Lisbon: Rights, Trust and the Transformation of Justice in Europe (Hart/Bloomsbury, forthcoming, May 2016).

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