Wikimedia Commons/Etengabe. Some rights reserved.

28 January was Data Protection Day, another occasion to think further about surveillance by intelligence agencies and transnational data-sharing. As a criminal justice organisation focused on improving fair trial rights protection, some of our work relates to the impact of surveillance and intelligence practices on due process and the rule of law. In particular, a look at our work on INTERPOL – the international police body – may offer some perspective.

Be demanding, be effective

INTERPOL links the police forces of 190 member countries around the world to enable them to cooperate in fighting crime. Our focus has been on its iconic tool, the ‘red notice’, an alert circulated by INTERPOL on a country’s behalf which enables police to seek the arrest of a wanted person. As we observed last week, the recent terrorist attacks in France have only underlined the need for systems like these, and INTERPOL responds to this demand.

However, the system is running into trouble because of cases like that of Bahar Kimyongür. Turkey had sought Kimyongür’s arrest for membership of a terrorist organisation, saying this was demonstrated by him heckling a Turkish minister visiting the European Parliament 15 years ago. Three countries’ police duly arrested him, and each time the courts responded by saying this was not a criminal offence by common international standards, effectively implying he was wanted merely for his political activism. INTERPOL, which is obliged to preserve its own political neutrality, eventually removed the alert (read our complaint here), but only after much wasted police and court time. Our 2013 report Strengthening INTERPOL argued that INTERPOL could, and should, do more to stop this.

INTERPOL alerts concern specific people wanted for specific offences. In that sense, there is a significant qualitative difference with surveillance systems. Nevertheless, they show clearly the power information can have. Bahar, for instance, spent 100 days detained, and another 80 on house arrest. You can see the link with the surveillance issue in a story published this week on openDemocracy describing the case of a German urban sociologist who, through a series of apparently erroneous assessments of surveillance data, was taken for a terrorist and arrested by mistake. Surveillance is problematic not just because of the privacy impact, but because at some point, the information it produces impacts concretely upon a person’s life.

The manipulation risk

If the German police made a mistake in that case, it is still not really suggested in that article that they were acting otherwise than benevolently. And that is the general perception of the intelligence agencies: they are probably well intentioned, but are just going too far with some practices.

But cases like Bahar’s also highlight an issue which is a little more remote in the surveillance context: the element of deliberate, politically-driven abuse. Once a Dutch court had refused his extradition on the basis of generally shared rules, Turkey ought to have known it would get nowhere with further attempts. Yet, determined to get its man, it persisted in using INTERPOL’s system to seek his arrest. As the Parliamentary Assembly of the Council of Europe noted in a report this week, it would be ‘catastrophic’ if powerful surveillance systems were allowed to become political tools. It may sound a little Orwellian, but the INTERPOL case shows that even within the Council of Europe community, systems are occasionally misused - it is therefore important to ensure that they are subject to effective legal limits.

Technical innovation, legal deficit

As exchange of information continues to develop, there follows a risk of the individuals affected being left in a legal vacuum. In the case of INTERPOL, the impact comes from the alert itself, described by the International Court of Justice as a ‘missile lock-on’ with its own impact: restricted freedom of movement, loss of employment and so on. But as the measure is international, the ordinary solution – the courts – is not available.

INTERPOL does, it is true, have a panel called the Commission for the Control of Files (‘CCF’) to which a person can complain about an alert. But there is cause for concern about its operation. Writing a year ago today to celebrate the last Data Protection Day, we pointed out that we had been waiting 17 months for a response to one request. This request has now been pending for 29 months. But for a panel benefiting from just 0.2 percent of INTERPOL’s €70m budget, delays are not surprising. Where the CCF bears more responsibility is in its failure to change its long-standing approach of receiving arguments from each side but not exchanging them, which raises serious problems.

This is exemplified by the case of Petr Silaev, a Russian refugee who was arrested in Spain for ‘hooliganism’ at Russia’s request in relation to his involvement in an environmental demonstration. In response to our application to the CCF, the Russian authorities provided the CCF with unspecified ‘materials’, which we have never seen. What we have seen is the most recent document in the case, a decision ‘amnestying’ Petr, which still describes a co-accused, Alexey Gaskarov, as being involved in the offence. Gaskarov, in fact, was acquitted in the courts long ago. If this document arguably contains a flaw, one can safely suppose the ‘materials’ might have too. But we do not know how the CCF approached the issue, as it does not provide reasoned decisions.

The erosion of due process

In light of that experience, we can sympathise with critics of ‘closed material procedures’ in the United Kingdom, enabling government to rely upon intelligence information which is shown to a special security-cleared representative, but not to the person concerned. The Justice and Security Act has now expanded the system to be available in ordinary civil claims. And the General Court of the EU, frustrated at repeatedly striking down EU sanctions because Member States are unwilling to surrender intelligence information to open court proceedings, last year proposed it should have a confidential materials procedure of its own (see here, Article 115).

These procedures are driven by intelligence agencies’ assessment of what is, and what is not sensitive. As a recent report noted, courts are generally deferent to the views presented in that assessment, and the lawyers involved have often noted that it is nigh-impossible to second-guess it. One of the benefits of the Snowden revelations is that it showed the indiscriminate and often deeply speculative nature of surveillance activities, calling into doubt the validity of this prerogative, and placing an onus on intelligence agencies to demonstrate through more open discussion why such serious interferences with equality of arms principles are necessary.

For the time being, these interferences face the charge of being positively determined to interfere with those principles. The Council of Bars and Law Societies of Europe (‘CCBE’) reported that the Dutch intelligence service had been tapping the phones of a prominent law firm, intercepting calls with their clients. As the CCBE’s President noted, ‘national security cannot serve as an excuse to ignore the principle of lawyer-client confidentiality and deprive citizens of the right to legal counsel and to a fair trial’. It seems that as the intelligence culture grows, procedural fairness is cast aside.

Taking stock

All of which, of course, leads to a discussion about reform. On the INTERPOL side, the organisation appears to accept that the zero-sum game between legal protection and law enforcement is a false dichotomy, and that strengthening safeguards can enhance confidence and effectiveness. It is reviewing its rules, and the Parliamentary Assembly of the Council of Europe (‘PACE’) will be studying the issue too. There is tentative hope that the new Chair of the CCF, a former European Court of Human Rights judge, might take the bull by the horns and finally push the CCF to start issuing reasoned decisions which demonstrate its credentials as a quasi-judicial body. On both fronts, INTERPOL and the CCF have the chance to show leadership and it is hoped they will take it.

The intelligence agencies have the same opportunity, and it is not to their credit that they have refused to appear before the PACE Legal Affairs Committee and others to explain their work. After years of technical and legal innovation designed to strengthen security, it is appropriate to listen to concerns and ensure that these systems are actually working fairly and effectively before resorting to more of the same.

Read more from our 'Closely observed citizens' series here.