EU counter terrorism measures and national implementation

26 september 2010

The post 9/11 era is characterized by a proliferation of laws and administrative measures to combat terrorism. (Re)Act first, then think, it seems. In the Netherlands, often at the behest of European regulations, a bewildering array of laws, regulations, special powers and administrative measures have been put in place to combat terrorism. The minister of justice can place telephone taps –we have become world champion telephone tapping- and a mayor can have somebody “followed obstructively” without prior judicial authorisation.

 

These measures restrict basic freedoms of individual citizens but are they effective?

 

Let’s look at an example. In 2004, the European Council adopted a Regulation to introduce biometric features in passports. The intention of the drafters was to improve document security and to combat fraud and falsification.

 

Subsequently, the Netherlands passed a law, introducing biometric passports containing a microchip with digital information about the passport holder. However, the law went a giant step further stipulating that the data of all biometric passports will be stored in a future central database. Not only the two fingerprints used in the passport but also two additional fingerprints. The data may be made available for a number of purposes, including criminal investigation and prosecution and the investigation of activities that may constitute a threat to state security and other important interests of the Netherlands.

 

The Dutch national data protection authority concluded that the government had tried to justify the storage of biometric data in a central database rather than seriously weigh the various interests involved. The data protection authority noted that the central database would function as a criminal investigation register. “This constitutes a serious breach of the right to privacy because the database contains the data of persons who are not suspected of any criminal offence.” The biometric passport had become “yet another in a long series of legal measures that had been taken in recent years to combat terrorism.”

 

The biometric passport law is not unique. In the last decade, far-reaching laws have been adopted in the fight against terrorism. Some of these laws have been criticized by the UN, challenged before the European Court or investigated by the Council of Europe. Some years ago, it was quite unthinkable that Holland would face international criticism for its human rights record. Today, there is a long list of critical UN and EU reports.

 

So what do we do?

 

First, we need to know what is out there. In 2007, a commission analysed the anti-terrorism laws that have been adopted. The commission Suyver concluded that the government had adopted all kinds of measures very quickly, ad hoc and piecemeal, but that the measures lacked coherence, legitimacy and effectiveness. Some measures may violate human rights.

 

The Commission recommended to regularly evaluate existing laws to combat terrorism. Currently, there is no requirement to evaluate the anti-terrorism after a certain period of time. In other countries, like Canada, anti-terrorism laws are introduced for a limited period of time, and then the necessity to keep them on the books is evaluated.

 

Secondly, before adopting new laws privacy and security impact assessment should be done. Are new powers necessary? Gathering more information will not enhance effectiveness. Take the case of the of the ‘Christmas terrorist’, the man who flew from Amsterdam to Detroit and tried to ignite his underpants in December last year. Everything about him was known. He was listed on multiple watchlists and his father had called the intelligence services to warn them about his son. Its is not about more measures, laws, powers and information but about better cooperation, information-sharing, analysis and shared situational awareness between organisations that have information, such as the intelligence services, police, investigating authorities etc. The bodyscan, which was quickly introduced in Amsterdam airport in December, is not the answer to the Detroit bomber.

 

Thirdly, we need to change the public discourse. The general public in Holland are quite unconcerned about the human rights implications of anti terrorism laws. Asking the average Dutch person –including highly educated ones- the typical answer is that if you have nothing to hide why all the fuss about human rights. Most people don’t know the powers the authorities possess to access data, tap telephones, search premises, infiltrate, observe and search persons who are not suspected of any crime. Yet, even if you them, perfectly reasonable persons respond that perhaps this is not ideal but obviously necessary given the terrorist threat. It is better to be safe than sorry. European research shows that the Dutch are less concerned about protection of personal data by public authorities and private agencies than citizens of other European countries.

 

There is truth in the words of Nick Clegg, in his first speech as deputy Prime Minister, when he said that: “We will end practices that will risk making Britain a place where or children grow up so used to their liberty being infringed that they accept it without question.”