How privacy-friendly is the new European Parliament?
The European Union’s privacy and data protection laws are some of the strongest in the world. And the privacy-related activities of the last European Parliament (2009-2014) have been the most intense in its history. For half of its term it steered the highly-debated data protection law reforms, with a first plenary vote cast in the nick of time before it dissolved last April. And for the last year it dealt with the fallout of the mass surveillance revelations by Edward Snowden, which were a wake-up call for MEPs who had previously advocated watering down of privacy protections, and spurred a full scale inquiry.
Consequently, leading into the European elections there was a greater push in putting privacy issues and digital rights higher up the agenda of competing political parties and individual MEPs. With the election over, we can see that the next five years will present a challenging time for privacy rights in Europe.
This election saw the most diverse collection of newly elected MEPs with many loudly shouting the importance of their national sovereignty over increasing globalisation or fighting attempts at harmonising national laws at the EU level . These anti-EU stances pose real questions when it comes to cross border issues like privacy and online rights. Future EU negotiations regarding free trade deals, copyright and intellectual property, or data protection look set to be more intense in a more polarised Parliament. The jury is still out whether this will be a more privacy-friendly parliament, or whether it will subsume our fundamental rights into other prevailing interests.
Committing to privacy
During these elections, we saw a remarkable level of discussion around the protection of online rights.
The "WePromiseEU" campaign, run by EDRi, a network of 36 European rights organisations, focused on voters pledging show their public support for candidates in favour of privacy and digital freedoms, as well as encouraging candidates to sign the 10 point "WePromiseEU" Charter. These 10 pledges included "(2) I will support data protection and privacy legislation", "(5) I will not support blanket, unchecked surveillance measures", "(6) I will promote online anonymity and encryption", and "(8) I will support export controls of surveillance and censorship technology" - all topics that will be of increasing importance in the coming years.
A total of 434 candidates across the EU signed on to these principles, with substantial support coming from candidates in France (64), Spain (64), Germany (53), UK (49) and Finland (30). As a sign of how widespread privacy and online rights became in Europe, only three countries (Latvia, Slovakia, and Malta) out of 28 were unable to produce candidates as signatories.
As a result of both the rising public temperature on privacy topics, and candidates themselves realising these issues are becoming more engrained in everyday life, the next Parliament will have 83 MEPs cutting across the 6 largest Parliament groups (i.e those national parties of the same broad background that come together in formal 'groups' i.e Centre-Left of the Socialists; European People's Party of the Centre-Right; the Liberals; the Greens etc) representing 18 different Member States who have promised to abide by and promote the 10 points of the Charter.
While the strongest representation comes from Germany (24), France (11), UK (8), Netherlands (8), and Austria (8), the geographic and political spread of the candidates reflects and supports the continent-wide recognition that the protection of privacy has become a serious concern in the public discussion. Although this is an encouraging start, remembering that there are in total 750 MEPs, means much more work is needed to put privacy rights continuously on the EU's agenda during economic negotiations, human rights discussions, or business deals.
But how serious is the commitment?
While key MEPs from the Socialists & Democrats, the Greens - European Free Alliance, the far-left GUE, and Liberals all pledged their support to the "WePromiseEU" Charter, it is disappointing that many of the party political manifestos made only light references to privacy, surveillance and the protection of our civil liberties.
The European Greens advocated the most on privacy topics, including references in their manifesto to "cut down" the trade in surveillance technology, promoting a 'Digital Bill of Rights' and making clear calls on Governments to respect personal data and the right to privacy. The Liberals have also long been advocates, to a degree, on data privacy topics in Brussels.
Yet the two groups suffered losses in both votes and experienced MEPs, as the French Green Party lost 8 of their 14 seats, the German Liberal FDP losing 9 of their 12 seats, while in the UK the Liberal Democrats lost of all but 1 of their 11 seats. Similarly, the Pirate Party saw its vote share drop across Europe with the loss of both of its Swedish seats, and are now reduced to representation by the newly elected Julia Reda in Germany.
Both leading groups, the centre-right European People's Party and the centre-left Socialists & Democrats focused squarely on economic and labour issues, mainly attempting to pull the EU from the economic mire it finds itself still in. The EPP did at least state clearly as a bare minimum that "privacy is a fundamental, inalienable human right" while noting their group's role in driving the reform for data protection rules, and stating that any negotiation with the United States on the Transatlantic Trade and Investment Partnership (TTIP) would have to meet "high EU standards" in certain areas.
EU Parliament response to mass surveillance
The WePromiseEU campaign highlights the increasing focus Parliament has been placing on privacy rights, and the shifting landscape that newly-elected MEPs will find themselves in once they join.
The tail end of this current term sent shockwaves through Europe following the Snowden revelations on the overreach of intelligence agencies. The Parliament is normally a forceful voice on raising human rights failings across the world, and the shocking scale of the global activities of the US and some European intelligence agencies brought a sharp response from the influential Committee for Civil Liberties, Justice and Home Affairs (LIBE), including a year-long inquiry. This is in stark contrast to the muted response that still occurs today in the UK.
A wide range of internationally respected technical experts, investigative journalists, senior officials, NGO and civil society leaders (including Privacy International), former intelligence officers and whistleblowers as well as heads of telecommunications companies gave evidence to the Committee. The resulting report was strong in its condemnation of the intelligence agencies’ activities. Amongst their recommendations were calls for the suspension of the ‘Safe Harbour’ pact which allows US companies to ‘self-certify’ that they are in compliance with EU privacy rules.
The topic of state mass surveillance is a particularly sensitive political one for many European MEPs following their own histories of state intrusion under authoritarian regimes - indeed it is one of the few issues that may unite the new left and right sections within the diverse Parliament. The future implications of this positioning, aside from the pushback on the issue of blanket surveillance, had MEPs warning the European Commission (although the Parliament has the final vote and can reject, the Commission negotiates the agreement on mandate from the Council) that they would reject the final free-trade agreement currently being negotiated with the US unless it fully respects fundamental rights and EU rules on data protection. This was a strong indication that MEPs were taking a more forceful stance on surveillance, data protection and the rights of EU citizens, to the extent of even willing to kill an economic treaty that diluted the importance of privacy rights.
There are two crucial-privacy related decisions for the new European Parliament in the near- and medium-term future: the final agreement on the new data protection framework and the vote to approve (or reject) the EU and US free trade agreement, TTIP.
On the data protection framework, the ‘old’ Parliament voted on a first reading, and the ‘new’ Parliament will have to go into negotiations with the European Commission and the Council of Ministers (the member countries) to agree the final version of the legislation. The Council is still deliberating on its version. The danger here is that the Parliament, depending on its current ‘privacy-friendly index’ may agree to some provisions that would water down essential rights. The final agreement on this legislation is now expected in early 2015.
On the trade deal, it is unlikely that privacy will play a decisive role in the decision of the Parliament, despite the strong opinions in the LIBE report; a trade deal covers a whole spectrum of issues, and - as seen from the manifestos above - economic issues are likely to prevail with the majority parties. An increased number of ‘nihilist’ MEPs, refusing to engage in the EU parliamentary process, will also make vote swinging increasingly difficult.
The above scenario could be overly pessimistic. More opportunities are showing themselves for the advocacy community to encourage amongst these lawmakers a greater understanding of digital rights and a reinforcement of privacy as fundamental to our expression of human rights. For example we're seeing more elected politicians using social media and more are viewing it as a valuable tool to engage with a diverse and continental-wide public.
The promise of individual MEPs across the spectrum to take on and defend privacy as a fundamental right for all Europeans should give greater comfort than any party manifesto commitment in Brussels but they will need to be engaged with to keep to them to their promises. Furthermore, the 667 MEP non-signatories of the Charter need to be informed by civil society and citizens of the critical importance of the right to privacy Europeans are entitled to, and the dangers that may evolve in the coming term.