A. Conclusions of the committee
(open)
The Committee on Legal Affairs and Human Right commends the
Committee on Culture, Science, Education and Media and its rapporteur,
Mr Axel Fischer, on its report and draft resolution. It largely
subscribes to the committee’s conclusions and recommendations.
The committee recalls that it is currently undertaking further
work on the protection of individuals against violations of their
privacy rights in cyberspace and on the protection of whistle-blowers
revealing abusive practices in cyberspace. It is in the process
of preparing reports on “Mass surveillance” and on “Improving whistle-blower
protection” (rapporteur for both subjects: Mr Pieter Omtzigt, Netherlands,
EPP/CD).
The committee is of the opinion that the draft resolution
would benefit from introducing the following amendments into its
text.
B. Proposed amendments
(open)
Amendment A (to the draft resolution)
In the draft resolution, at the end of paragraph 3, add the
following sentence:
“The objective
must be an internationally agreed legal framework with appropriate
enforcement mechanisms, including protection for whistle-blowers
who disclose violations.”
Amendment B (to the draft resolution)
In the draft resolution, after paragraph 6.1, insert the following
paragraph:
“collection, storage
and processing of so-called meta-data (data that describes other
data, for example information on senders, recipients, timing, key
words, movements or contacts) shall be subjected, in principle,
to the same rules as the collection, storage and processing of any
other personal data;”
Amendment C (to the draft resolution)
In the draft resolution, paragraph 6.3, after the words “while
law-infringing users must be identifiable”, add the words “and criminals
must be identifiable by law enforcement bodies subject to the legal
safeguards required under the European Convention on Human Rights
(ETS No. 5);”.
C. Explanatory memorandum by Mr Díaz
Tejera, rapporteur for opinion
(open)
1. Amendment A would
strengthen the existing text, which is calling for a global initiative
for improving user protection and security in cyberspace, to specify
what the objective of such an initiative could be, namely to set
up an internationally agreed legal framework with appropriate enforcement
mechanisms. More details of this proposal will be included in the
report under preparation in the Committee on Legal Affairs and Human Rights
on “Mass Surveillance”. But it can be said already now that a good
tool to help enforce any legal restrictions on surveillance is solid
protection for whistle-blowers who disclose violations of said legal framework.
Due to the nature of the bodies carrying out surveillance (usually,
secret services, whose supervision is very limited due to secrecy
considerations) it will be very difficult to enforce any legal restrictions placed
on surveillance in a credible way. The “sword of Damocles” of a
whistle-blower safely disclosing any violations of the agreed rules
may well be the most effective enforcement mechanism available.
2. The widespread perception that the collection, storage and
processing of “metadata” is somehow not as problematic as that of
the “content” of communications is false: the processing of metadata
can provide an even more complete picture of the private life of
a “target” than the processing of the content of communications,
and should therefore be subjected to the same rules as the processing
of other personal data (Amendment B).
3. With regard to Amendment C, the part-sentence to be replaced
could be misinterpreted in order to justify a crackdown on the use
of encryption, which is in turn the best way for ordinary Internet
users to protect themselves from suspicion-free surveillance, and
whose use the draft resolution is itself advocating in paragraph
6.2. In fact, all Internet users have the right to (try to) remain
anonymous, whilst law-enforcement bodies have the right to (try
to) identify perpetrators of illegal acts. The point is that they
may invade the privacy of Internet users (in the same way as that
of telephone or paper mail users) only under certain conditions defined
by law (in particular, reasonable grounds for suspicion), as required
under the European Convention on Human Rights (ETS No. 5)
