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Privacy and security: Is Europe going banana?

Privacy and security: Is Europe going banana?. Jean-Marc Van Gyseghem Head of Unit « Liberties in the information society » CRID – University of Namur Member of the Bar of Brussels – partner Rawlings Giles. Plan. Historical background Council of Europe. European Union.

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Privacy and security: Is Europe going banana?

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  1. Privacy and security:Is Europe going banana? Jean-Marc Van Gyseghem Head of Unit « Liberties in the information society » CRID – University of Namur Member of the Bar of Brussels – partner Rawlings Giles

  2. Plan • Historical background • Council of Europe. • European Union. Barcelona, June 11th 2010

  3. Historical background • Council of Europe: • Article 8 European Convention on Human Rights • Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data (CoE) • Recommendations of the CoE as R(87) 15 regulating the use of personal data in the police. Barcelona, June 11th 2010

  4. Historical background • European Union: • Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data • Council Framework Decision 2008/977/JHA of 27 November 2008on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters • Charter of Fundamental Rights (article 8) • Treaty of Lisbon Barcelona, June 11th 2010

  5. Council of Europe • Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms : • Principle: right to privacy • Exceptions: interference with a law in a democratic society in the interests of national security, public safety and I the respect of proportionality. Barcelona, June 11th 2010

  6. Council of Europe • Following the European court of Human Rights, the rules about personal data processing in matter of security and terrorism: • Must be very precise: • Sharp description of the kind of information which could be registered; • A sharp description of the categories of people who could be subject to surveillance with collect and conservation of information; • A sharp description of circumstances which such measure can be taken in; • The procedure which has to be followed to implement such measure; • Etc. Barcelona, June 11th 2010

  7. Council of Europe • We must avoid to collect information about people who is not suspected to be involved in any offense, except strict necessity and proportionality; • The conservation must be strictly limited to a period of time; • Prohibited to collect only for reason of racial origin, religion, sexual behavior, etc. • Institution of strict guaranties of control (effective and appropriate). Barcelona, June 11th 2010

  8. European Union and the criminal matter and terrorism • We have several periods which can overlap each other: • Three pilars: • First pillar: the Community one, corresponding to the three Communities: the European Community, the European Atomic Energy Community (Euratom) and the former European Coal and Steel Community (ECSC) + free movement of persons (Treaty of Amsterdam); • Second pillar: devoted to the common foreign and security policy, which comes under Title V of the EU Treaty; • Third pillar: devoted to police and judicial cooperation in criminal matters, which comes under Title VI of the EU Treaty (third pillar). • Post September 11th; • Treaty of Lisbon Barcelona, June 11th 2010

  9. European Union and the criminal matter and terrorism Treaty of Maastricht (1992) 3 pillars Treaty of Lisbon Into force (01.12.2009) September 11th Barcelona, June 11th 2010

  10. European Union and the criminal matter and terrorism • In the fact, there is a before and an after September 11th in the European politics on the security and the terrorism. • The third pillar became the instrument to erode the principles of specific purpose, proportionality and necessity: • « Principle of availability»: exchange of information between member states; information coming from national database which have initially specific purpose. The state beneficiary can have information at first request  problem of the compatibility of the further use with the initial one. Barcelona, June 11th 2010

  11. European Union and the criminal matter and terrorism • « Principle of interoperability»: common use of information systems to a large scale and to allow access to data, exchange of data an even fusion of data base (see EDPS’ position in 2006)  problem of the compatibility of the further use with the initial one (for example: use of data - collected for a purpose of visa – for a purpose of fighting the terrorism) . Barcelona, June 11th 2010

  12. European Union and the criminal matter and terrorism • «Principle of cooperation»: use of data coming from private operators in a purpose of fighting the terrorism • Data retention (Directive 2006/24); • Swift; • PNR agreement between USA and Europe. Barcelona, June 11th 2010

  13. European Union and the criminal matter and terrorism • Council Framework Decision 2008/977/JHA • Personal data received from or made available by the competent authority of another Member State may, in accordance with the requirements of Article 3(2), be further processed only for the following purposes other than those for which they were transmitted or made available: (a)the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties other than those for which they were transmitted or made available; (b) other judicial and administrative proceedings directly related to the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties; Barcelona, June 11th 2010

  14. European Union and the criminal matter and terrorism (c) the prevention of an immediate and serious threat to public security; or (d) any other purpose only with the prior consent of the transmitting Member State or with the consent of the data subject, given in accordance with national law. Barcelona, June 11th 2010

  15. European Union and the criminal matter and terrorism • Consequences: • Predominance of the third pillar over the first one about the data protection; • Erosion of the principle of specific purpose of any personal data processing; • Attenuation or disappearance of the principles of: • necessity; • proportionality; • transparency. Barcelona, June 11th 2010

  16. European Union and the criminal matter and terrorism • Reversal of the principle of the presumption of innocence; • The concept of “liberties will lead to security” is replaced by the one of “security will lead to liberties”; • Major risk of appeal at the European Court of Human Rights (Strasbourg) against the rules adopted within the third pillar. Barcelona, June 11th 2010

  17. European Union and the criminal matter and terrorism • Treaty of Lisbon: • No more pillars; • But, it’s only an appearance: • The principle of personal data protection following the domain of competence is maintained: • see jointly the article 16 of the treaty on the Functioning of the European Union and the Declaration n°21 on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation; • See article 39 of the Treaty on European Union. • Therefore, the lacks of the rules adopted before the Treaty of Lisbon within the third pillar are still present! Barcelona, June 11th 2010

  18. Thanks for your attention! Contact: jean-marc.vangyseghem@fundp.ac.be jmvg@jmvg-avocat.be Barcelona, June 11th 2010

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