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Just as the United States is taking a first step toward placating European privacy concerns about U.S. surveillance, several European countries are passing laws dramatically expanding their own spy programs.
The House last month passed the Judicial Redress Act, intended to extend some privacy protections to foreign citizens. Meanwhile, the French Senate just passed one of the broadest international surveillance bills in the world and several other European countries are moving in a similar direction.
That frustrates Congressman Jim Sensenbrenner, R-Wis., who sponsored the Judicial Redress Act because he wanted to improve relationships with our international allies.
“Rather than criticizing U.S. surveillance practices, I encourage the EU to work to ensure that its own privacy protections meet the standards they demand from us,” he said in a statement emailed to The Intercept.
Ever since whistleblower Edward Snowden disclosed the extent of the U.S. National Security Agency’s sweeping dragnet of surveillance overseas in 2013, the Obama administration has been working to reassure friendly nations that we trust them, and aren’t indiscriminately spying on them.
It’s been an uphill battle. When European diplomatic leaders first learned the extent of NSA spying, they threatened to renegotiate major trade deals and said they felt betrayed. President Obama gave a speech stressing the importance of protecting privacy for people outside the U.S. in January 2014, saying, “Our efforts will only be effective if ordinary citizens in other countries have confidence that the United States respects their privacy, too.” He told European leaders including German Chancellor Angela Merkel that he’ll “call them” rather than resort to surveillance in the future.
The Judicial Redress Act passed in the House would give the Department of Justice the power to identify allied countries, presumably in Europe, where citizens would be allowed to sue U.S. agencies that mishandle their private data. The USA Freedom Act that passed in June, while in no way curtailing surveillance of foreigners, was seen by many as a sign that Congress was willing to consider curtailing the power of the NSA.
Despite all that, European officials continue to find U.S. privacy protections inadequate. Most recently, the EU Court of Justice this month invalidated the safe harbor data-sharing framework between the United States and Europe because it concluded that U.S. intelligence agencies were meddling in the “fundamental rights of persons” by indiscriminately vacuuming up Europeans’ data.
But instead of reining in their own spy agencies as they would have the U.S. do with the NSA, European countries are doing the opposite.
Privacy activists across the EU see a “race to the bottom” going on. “While the U.S. has been a bad example, EU countries have been adopting similar or worse measures in the past years,” writes Estelle Masse, a policy analyst for digital rights organization Access Now.
Governments in 14 countries around the world have passed new laws giving domestic intelligence agencies increased surveillance powers since June 2014, according to a new study released last week by Freedom House.
“In response to Snowden’s revelation, instead of strengthening safeguards against unlawful surveillance, many European states are weakening privacy protections,” Tomaso Falchetta, a legal officer for Privacy International, wrote in an email to The Intercept. “They have enacted laws that give more powers to intelligence and security agencies to intrude into our lives.”
In France, if the Senate bill becomes law as expected, French intelligence agencies will be able to vacuum up any and all communications sent or received from overseas via underwater Internet cables relating to the “essential interests of foreign policy” or the “essential economic and scientific interest of France.”
While United States foreign intelligence gathering is supposedly specifically directed toward “targets” suspected of involvement in terrorism or transnational crime, the new French law allows for carte blanche spying on any person, group, or region outside France that might be of foreign policy, economic, or scientific interest — with very little oversight, warrants, or judicial review.
“The justification of the measures is so broad as to be meaningless,” says Kirsten Fiedler, managing director of European Digital Rights, one of 30 civil rights groups who sent a letter to French parliamentarians on September 30 asking them to reject the law — though many suspected it would easily pass.
La Quadrature du Net, a French Internet advocacy group, cites the exploitation of terrorism fears following the Charlie Hebdo attacks for the success of multiple new surveillance laws in France.
Under the new bill, France’s prime minister would be the sole authority over the spying program, which would allow the government to hold onto data for years. Meanwhile, the legislation leaves room for future spying technology to quietly proceed without any debate.
And in the U.K., the government on Wednesday will introduce a new investigatory powers bill to give police and intelligence agents more leeway to track people online.
Germany, which last week announced that it would be curtailing its spy agencies’ powers as a result of its work with the NSA, appears to be anoutlier.
Sensenbrenner reacted with outrage to the European Court of Justice’s striking down of the safe harbor provision for lack of privacy protections. He called safe harbor provisions “critical for U.S. businesses.”
“The court reached this decision despite the fact that the United States has given serious thought and enacted meaningful reforms to protect privacy rights without compromising national security,” Sensenbrenner said.
“Serious legislation, such as the USA Freedom and Judicial Redress Acts, not only protect people’s privacy, but also give significant transparency of America’s surveillance practices,” he said. “But as we continue these efforts in America, we encourage our European colleagues to do the same.”