Directive on Terrorism: The European Parliament against our freedoms
June 2016 by La Quadrature du Net
Far from the French and European media spotlights, a draft directive on terrorism is being discussed at the European Parliament and will be voted on 15 June. This directive, aiming to frame the European counter-terrorism policies and laws, is crucial for Europeans to enjoy their fundamental rights.
But the current political discussions and negotiations would lead to widespread fiasco on freedoms and to an alignment of the worst policies violating civil rights, especially on the Internet, through censorship and surveillance. Members of the European Parliament (MEPs) must redress the balance and strengthen the safeguards provided for the European citizens.
The draft directive on terrorism was presented in December 2015 by the European Commission. Initially, it was aiming at giving collective definitions and an harmonised framework to ease the cooperation between countries in the fight against terrorism and against its financing and to provide assistance to victims. However, under the authority of the rapporteur Monika Hohlmeier (EPP - DE1), and with the support or pressures of governments (especially French government), the text become more stricter at the European Parliament and is heading towards a framework for the whole European Union where the fight against terrorism will pick up from everything La Quadrature du Net has been denouncing in France for 2 years: censorship of websites, attacks against encryption and right to privacy, heavy electronic surveillance and lack of safeguards for civil rights.
At which point are the discussions at the European Parliament?
The text will be voted by the Committee on Civil Liberties (LIBE) on 15 June. This vote is crucial, it is where that the almost final version of the text will be adopted. The amendments currently in discussion need to be inspected every day to see where the provisions get better or worse. The power balance is bad for civil rights advocates.
• the rapporteur Monika Hohlmeier (EPP - DE) supports since the beginning a hard line, continually strengthening surveillance and censorship measures;
• the social-democrat left (S&D), represented by the shadow rapporteur Caterina Chinnici (S&D - IT), is in a wait-and-see approach. France is pressuring French socialist MEPs to endorse all the provisions tabled by the right-wing group and the rapporteur doesn’t seem to have any intention to oppose the serious infringement of rights in the text;
• the centrist group (ALDE) carries a tradition of protecting civil rights at the European Parliament. To us , the shadow rapporteur Petr Jezek (ALDE - CZ) seems too shy and needs to get more involved against the EPP - S&D security alliance;
• on the Greens side, Eva Joly (Greens/EFA - FR) knows as a determined opponent to the French Surveillance Law and whose political family opposed attacks on freedom of speech and surveillance, seem to be off topic and does not oppose the worst provisions of the text. We need her political group to take hold of the position for the Greens;
• only Cornelia Ernst (GUE/NGL - DE) is clearly opposed to the provisions of the text and is in favour of the defence of civil rights.
The situation is fragile: because of the moral and media pressure of the terrorist risk, because of the pressure from governments (France in particular) who want to cover their existing legislation in that directive, the text is about to create a sort of umbrella legislation too wide and not enough protective, and yet still targeting the Internet and fundamental rights.
Which measures of this draft directive are targeted by La Quadrature ?
La Quadrature du Net focused specifically on the compromise amendments2 currently discussed. They affect fundamental rights on the Internet and in electronic communications. Therefore, this is not the whole the directive.
Concerning the infringement of freedom of expression
The compromise amendments 6 (recital 7a and article 14a) aims to establish all "measures to block access to webpages publicly inciting to commit terrorist offences". It clearly opens the door to websites blocking, which is a heavy infringement of freedom of speech and freedom of information. And this without being actually efficient to fight terrorism, as the French experience shows since its implementation 18 months ago.
The text of the amendment does not foresee either any guarantee of effective lega appeal nor any framing of this censorship by a judge. This brings the European text closer to the French legislative framework and because other European countries are ordered to apply these measures, it will make them fall into the same trap: non-transparent censorship, non-existing guarantees, marginal results.
In addition to encourage this kind of measures for Europe, when they were only a French exception so far, MEPs suggest also that companies should be held for responsible if they do not cooperate by deleting content or blocking websites3. The last versions of the text required that websites remove all the content following a request, without any guarantee, under penalty of prosecutions. This is simply a destruction of the fragile balance between responsibility of online content and fundamental rights4.
On encryption and electronic evidences
The compromise amendment 10 establishing a recital 15b deals with cooperation between Member States, Eurojust and Europol to collect, share and make admissible electronic evidence5, which means that it applies to investigations and surveillance over networks. Now the text is too vague. If cooperation between Member States can only be encouraged, the current text is too vague. The amendments tabled by the rapporteur at the beginning of the study of the text explicitly quoted Tor, VPNs and other privacy protection tools as obstacles to investigations. If these tools are no longer explicitly mentioned, it promises dangerous future provisions. At a minimum, we should support these provisions with a clear definition of the right to respect for privacy and the right to confidentiality of electronic communications, reasserting the right to encryption, the right to anonymity and the right to use pseudonyms (see proposal La Quadrature du Net on surveillance).
On notions of assistance and complicity
The compromise amendment 4 concerns the assistance and complicity to perpetration of terrorist infractions. Especially, recital 11 and article 16 are not sufficiently clear on the notion of intention, leaving a large leeway for interpretations. Knowing that tools, in particular encryption tools, can be used by terrorists cannot be sufficient to turn those who make and share those tools into accomplices. It is absolutely necessary to clarify the notion of complicity and implies that the accomplice has the intention to give an assistance to the person directly involved with the infraction. What would become a person that published a encrypted chat service? What kind of responsibility is foreseen for a service such as Tor?
La Quadrature du Net regrets the escalation of proposals approving Internet censorship and extremely invasive surveillance measures without any safeguards. By nature, this text will be used as a framework and goal for all countries of the European Union. It should therefore be strictly controlled to prevent any deviation and any escalation of surveillance infringing fundamental rights, pillar of the values of the European Union. "It is essential for MEPs of the LIBE committee to restrict the appetite for security of the rapporteur Hohlmeier and to resist the wishes of countries already engaged in this spiral, like France, who thus seek to validate their dangerous strategies " says Agnès de Cornulier, in charge of legal and political analysis at La Quadrature du Net.
Follow compromise amendments on our wiki.
• 1. Usually MEPs are represented by the political group they belong to, here the EPP, and by their Member State, here Germany
• 2. Once the rapporteur presented his/her report (it means the amendments he/she wants to submit to the vote) each MEPs is allowed to submit amendments to the text too. Then after several meetings between the rapporteur and the shadow rapporteurs, lead away from prying ears, the rapporteur presents the compromise amendments but without publishing the different versions and saying a word about the negotiations. This leave the field free to undemocratic practices.
• 3. This provision was proposed by Rachida Dati during the preparation of her report about terrorism which was adopted by the European Parliament on 3 November 2015
• 4. Meanwhile the European ombudsman publicly worries about the opacity of the discussions between governments, EUROPOL and big internet companies within the Internet Forum define the rules of the fight against hate speech outside any legal framework and without inviting the civil society. This was denounced by EDRI
• 5. Written evidence is, according to the French Law, defined as resulting "a sequence of letters, characters, numbers or any other signs or symbols endowed with an intelligible meaning, whatever their support and transmission procedure". The evidence is used to show the validity of an agreement, a charge, etc. The written proof includes electronic evidence