Europe’s Intelligence Post-Charlie Hebdo
After a string of terror attacks, European nations are engaging in increasing domestic surveillance. But is it making us safer? Here’s how laws have changed.
Paris, 7th January 2015. Two brothers who identify themselves as part of the Al Qaeda branch in Yemen storm their way into the editorial of the satire magazine Charlie Hebdo, killing 12 and injuring 11 others. That day’s cruel attack in Île-de-France, together with the manhunt that followed, mark a turning point for European intelligence, says Diego Naranjo from the non-governmental Electronic Digital Rights (EDRi), which advocates and campaigns for the protection of citizens’ privacy.
"That attack was definitely a milestone. It’s especially the political rhetorics that changed, and they in turn have fuelled all these surveillance policies." At EDRi and other human rights organisations, each terror attack’s aftermath has been followed with unease. As Naranjo explains, after every single attack a new policy is immediately part of the response to terror: "It seems that the new surveillance policies are waiting on the shelf, ready to be introduced or speeded up at the right moment."
Already in January 2015, the French then-Prime Minister Manuel Valls called for increased surveillance to prevent terror, and the parliament passed a new law in July that year.
November 2015 saw an even more disastrous terror attack in Paris, when Islamist terrorists struck several places simultaneously, killing 137 and injuring 368. After the attack, then-president Francois Hollande declared that “France is at war”, announcing a three-month state of emergency for the whole country. The state of emergency has since then been extended several times. As of April 2018, it is still in place, long since the three-year anniversary of the attack has passed.
France is not the only country that has changed its surveillance legislation in the wake of a recent terror attack. In Belgium, half a year after the Brussels metro and airport bombings a law granting investigators extensive online surveillance powers was introduced. Belgium and France, together with Germany, the Netherlands and the United Kingdom all have implemented mass surveillance as a form of intelligence gathering. This means that surveillance is not targeted at suspects or people with a criminal record, but the entire population, by filtering all communication traffic with keyword and pattern searches.
What Naranjo finds even more worrying is how surveillance is all the time less about security, and more about controlling citizens.
"Governments benefit from control. If something happens, they can act on it quickly. But it also leads to predictive policing where algorithms decide who needs to be surveilled or not," he explains.
For instance, police in the United Kingdom use predictive policing to patrol more crime-prone neighbourhoods, which have higher rates of petty crime rates and drug abuse. As it’s often poorer neighbourhoods, people end up in an endless loop of arrests, criminality and poverty, Naranjo says.
Not has only surveillance shifted from investigating crimes that have happened to more control, it is rarely introducing measures that would actually target only people suspected of links to terror organisations.
Quite the contrary: sometimes the intelligence authorities use their new powers to intimidate minorities and target people and groups critical of current governments. As Amnesty International has noted, France’s state of emergency has lead to “disproportionate” and “discriminatory” surveillance that targets especially France’s Muslim population.
For instance, the police has searched premises – for which they don’t need judicial authorisation under the state of emergency – on very vague grounds of “a threat to national security”, far below the threshold required otherwise under French criminal law. They have also shut down places of worship and established security zones where people are subject to identity checks and searches.
An Ill-Suited Tool
As the information rights’ group Access Now wrote in their open letter already after the Charlie Hebdo attack, French officials had “admitted they had prior intelligence, which suggests that neither did inadequate surveillance contribute to these horrific attacks, nor would heightened surveillance have prevented them.” Mohammed Abrini, the man identified as one of the attackers at Brussels Zaventem airport, was also already under police surveillance at the time of the attack.
As EDRi noted, mass surveillance is an arguably ill-suited tool for preventing terrorism. The November 2015 Paris attacks were coordinated via regular SMS messages, in a time when French authorities on legal grounds already had all possibilities to intercept them. Still, terrorism was used in the United Kingdom as the reason to pass the so-called “Snooper’s Act” – or Investigatory Powers Act – in 2016 which gives authorities the power to demand messaging companies to decrypt data for example from phone calls and e-mails, or services such as Whatsapp using end-to-end encryption.
The largest public response against surveillance came already in 2013 after the leaking of classified NSA documents by whistleblower Edward Snowden. Many surveillance practices, such as the NSA’s collaboration with social media providers, woke the public for the first time to think about their data’s privacy protection in the digital age.
A lot of the critical atmosphere from the leaks and the media frenzy that followed faded away after Charlie Hebdo and January 2015. For instance, the German foreign service BND (Ger. Bundesnachrichtendienst) had been under parliamentary investigation since 2014 due to Snowden’s allegations that it had been spying on German companies and businessmen on behalf of the NSA. However, when the final report of the investigative committee was published in summer 2017, barely anyone noticed it. The atmosphere in the country had shifted, not least due to the islamist-motivated terror attack on a West Berlin Christmas market in December 2016. In a national survey conducted in early 2017, 79 percent of Germans said they wanted more video surveillance to feel safer.
Terrorism paved the way to zero criticism from the public when it comes to surveillance, Diego Naranjo of EDRi says: "Shocking events leave the public in paralysis, and it’s possible to push any policy through. For us it has meant that we have barely been able to mobilise people for better protection of people’s privacy."
One exception in the zero criticism time was however the Netherlands. A bill introduced in November was met by a prominent student-led campaign that asked Dutch people to rethink some of its content, such as bulk interception of communication. In March, a slight majority of the country’s citizens voted against the bill in a national referendum. Authorities have promised to take the referendum into account and modify some parts of the bill.
From a citizens’ protection perspective, the democratic control of surveillance authorities and ongoing practices is key. Most EU countries require their intelligence services or those carrying out surveillance on civilians (meaning, not military targets) to report about it to a parliamentary oversight committees or a national judicial body. With other democratic bodies checking what exact measures are implemented and how suspects for targeted surveillance are chosen guarantees the respect of fundamental rights and liberties, a European Parliament body said in a report.
Some countries that changed their legislation after 2015 have failed to included judicial oversight all together. Austria’s intelligence agency BVT reports only to a closed sub-committee of the parliament, and in Belgium the prime minister can sign off far-reaching surveillance practices with no further consultation. In Poland, foreign nationals can be subjected to targeted surveillance for three months without a need to report it to a judge.
Sometimes democratic oversight has been overruled through the implementation of states of emergency, as is currently the case in France and Hungary. In the latter, a 2016 bill foresees a state of emergency when there is a “terror threat situation”, in which the executives would have to merely “inform the President and any relevant parliamentary committees” about their actions. The same applies for France.
In some countries citizens can also send complaints to a special rapporteur such as the Defender of Rights in France, or a data protection officer. Some surveillance cases have even made it to higher national or international courts. For instance, in December 2016 the European Court of Justice ruled that Britain’s surveillance laws are illegal due to mass and indiscriminate data collection of everyone in Britain.
The changes in European surveillance legislation need to be seen in the overall political context of the continent. As Amnesty International noted in their extensive 2017 report Dangerously Disproportionate:
“Given the febrile state of European politics, electorates should be extremely wary of the range of powers and extent of control over their lives that they are prepared to hand over to their governments. The rise of far right nationalist parties (...) risk that these emergency powers will target certain people for reasons that have nothing at all to do with a genuine threat to national security or from terrorism-related acts.”
Meaning: as governments change, powers that were once trusted to be handled with care can become disastrous with someone else.
Read more about the newest developments in European surveillance.
Graphics by Linnéa Svensson.