Rights Agency Wants More Transparency in EU Surveillance Laws

European unease over government surveillance has deep historical roots and the fallout from Edward Snowden’s revelations about the U.S. National Security Agency’s massive data collection did nothing to calm such fears.  Litigation at the EU’s highest court challenging data transfer mechanisms to the U.S. has rested on concerns over government access to data. A new EU report confirms the surveillance angst.

The EU Agency for Fundamental Rights (FRA) issued Part II of a research project, commissioned by the European Parliament, on the effect of government surveillance on the fundamental rights of EU citizens. Privacy and data protection are guaranteed human rights under European Union law, protected by the EU Charter of Fundamental Rights and the European Convention of Human Rights.

The report prescribes better oversight of intelligence collection and more effective remedies for privacy violations, both issues that the EU-U.S. Privacy Shield was designed to address. The report notes that “few individuals are even aware that remedies are available.” The FRA was established in 2007 to provide specialized advice to EU institutions and member states to ensure the protection of citizens’ fundamental rights.

The U.S. and European Commission recently completed the first annual review of the EU-U.S. Privacy Shield, an agreement to facilitate the flow of data from the EU to U.S., which replaced the Safe Harbor agreement after privacy concerns over surveillance led the Court of Justice of the European Union to strike it down. The commission report on the annual review concluded that the Privacy Shied has so far been adequately implemented.

“A critical aspect of it is political, like ensuring that the reform of the U.S. surveillance legislation supports the privacy protections from government interference, which are so fundamental to the whole framework,” Eduardo Ustaran, data protection partner at Hogan Lovells LLP in London, told Bloomberg Law.

There are a tranche of bills before Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows intelligence agencies to target communications of foreign persons located outside the U.S. The law is set to sunset Dec. 31 unless reauthorized. One authorization bill sponsored by Sens. Richard Burr (R-N.C.) and Mark Warner (D-Va.), was voted out of the Intelligence Committee Oct. 24 in a closed session. No bill text is publically available, but Burr said in a statement that the measure would provide “additional privacy protections” for Americans and require “additional transparency into Section 702 targets through reporting to Congress.” The EU would like to see privacy protections and limits on bulk collection of data implemented by President Barack Obama in Presidential Policy Directive 28 codified into law through new language in a renewed FISA.

The FRA report’s focus on European surveillance and its recommendations for similar oversight and remedial measures for European government should drive home to Congress that the EU’s stance isn’t just about U.S. surveillance. France, Germany, the Netherlands, and the U.K. have implemented broad intelligence gathering reforms that have increased transparency, but they still lack of clarity, FRA said.

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