The European Parliament and Human Rights on the Internet
Glyn Ford, Chapter 3 in Stephen Hick, Edward F. Halpin and Eric Hoskins (eds). (2000). Human Rights and the Internet, Stuttgart:MacMillan.
Introduction
This chapter will provide a brief analysis of two issues that are currently at the heart of the political debate about human rights within the European Parliament. First, ‘Illegal and Harmful content on the Internet’ which includes the issues of racism, pornography and paedophilia, and how such content can be controlled. Second, the ‘Technologies of political control’, which deals with the role of government in accessing and controlling information about individuals and organizations by means of covert surveillance using new information and communication technologies. These two issues are inseparably linked to the exponential growth of the Internet and the rapid development of new information and communication technologies, giving rise to many questions about access, control and the role of the state which challenge individual human and civil rights.
The European Parliament and control of Internet content
On the 16 October 1996 the European Commission published a ‘Communication on Illegal and Harmful Content on the lnternet’ 1 and a ‘Green Paper on the Protection of Minors and Humans in the Context of New Electronic Services’.2 Both documents advocated closer cooperation between Member States on an international level, the use of filtering software and rating systems, and an encouragement to self regulate Internet content. In mid November that year the Commission forwarded the Communication to the Parliament and Pierre Pradier, MEP, drew up a report on behalf of the Civil Liberties Committee. This document paved the way for more literature and debate on safe use of the Internet in a European Union context. It was followed by the Schmidt Report on a proposal for a Multi-annual Community Action Plan on promoting safe use of the Internet.3
Much has already been said about the emergence of the information superhighway, the huge world-wide labyrinth within which information circulates, and the social and economic repercussion this will have over the coming decades upon our society. The Internet is without question one of the most important developments this century. While it provides a great source of information for society, the nature of the Internet is such that censorship is virtually impossible. Quite simply, if a message is blocked from passing through one channel it can go through another. It is vital therefore for industry and politicians to work together to address the public concern about harmful and illegal content on the Internet. It is necessary at the outset to distinguish between different problems of differing characters. Child pornography is illegal and punishable as a criminal offence in many countries. Less clear is the impact of children having access to pornographic material intended for adults, which, while being harmful to their development, is not necessarily illegal. This is equally true when we look at the dissemination of documents of a racist nature. What needs to be guaranteed is that what is illegal offline is also illegal online.
Meanwhile, the rise of the extreme political right continues unabated. At the last European Elections 10 million people voted for extreme right parties. There are now 32 MEPs from extreme right-wing parties and in France jean Marie Le Pen’s Front National controls four towns: Toulon,
Marignane, Vitrolles and Orange. In Antwerp in Belgium, the Vlaams Blok is the most popular party. Extremist parties such as the Front National, the Vlaams Blok and the British National Party were quick to spot the power of the Internet and found it an ideal medium with which to disseminate their ideas. This is also true of a host of other extreme right-wing groups who use the Internet to incite hatred and discrimination against people on the grounds of race. It is absolutely vital to tackle racist activity on the Internet and the route to doing so is by tackling the publishers. I completely reject the common carrier defence of Internet service providers who disclaim responsibility for the contents of messages carried on their systems. The service providers say they are no more responsible than an airline is for drugs smuggled on one of its planes. Let’s face it though, if I told an airline that it was about to fly a consignment of drugs across Europe, I would be surprised if they did nothing whatsoever about it. If it did nothing we would have a complaint. The service providers have a similar responsibility.
The argument for control of the Internet seems very much polarized between those who place high value on freedom of expression and those who believe that everything possible should done to control (for example) violent sexual exploitation and racist material. We all now know that offensive and dangerous racist material is easily accessible on the Internet, but there are no hard and fast solutions as to how we deal with it. The EU itself does not have criminal law and law enforcement powers and therefore we can only look at potential control measures that encourage the preparation of necessary national legislation and international agreements and promote voluntary cooperation by industry and users. The Schmidt Report stresses how content must be combated at the source by law enforcement agencies; their activities are covered by provision of national law and agreements on judicial cooperation. However, it does point out that industry can lend a hand by restricting the circulation of illegal content through a properly functioning system of self-regulation. The Commission’s proposed action plan is based on four action lines in order to strengthen the European position with a view to initiating longer-term actions at a national level, namely:
1 creating a safe environment;
2 developing filtering and rating systems;
3 encouraging awareness actions;
4 support measures.
The European Parliament has granted funds for the above plan and the report was passed overwhelmingly in Committee and will now be submitted to plenary session of the Parliament.
The problem is clearly world-wide. We need therefore to tackle it with a global response in order to overcome the national differences in law, or the people who will benefit from the different nuances in the law will be the racists, child pornographers and so forth. It is also essential to alert parents, teachers and the media to the potential dangers of the Internet. Towards this end, the European Union, and in particular the European Parliament, continues to be at the forefront of putting forward new ideas and progressive policies to combat potentially harmful content on the Internet.
While we are all well versed in the negative impact of the Internet in terms of pornography and race hate material, information technology has also become a key tool of the human rights movement. Groups and organizations have been quick to recognize the value of the Internet to enhance their work. We only have to look at the number of anti-racist organizations who have established themselves on the world-wide web to disseminate their ideas, forging links with similar organizations across the world. We only have to look at, for example, the likes of the Stephen Lawrence case in the UK and other similar racist murders, to see how their causes have been highlighted across the world to seek support and exchange ideas on best practice. Such use of the Internet needs to be promoted and encouraged. The fight against racism has to be fought at all levels, including the Internet. We must use it to our own advantage to counter the racists who also use it to such good effect.
The technologies of political control
The European Parliament’s Science and Technology Office of Assessment (STOA), a research unit created approximately five or so years ago to help MEPs appreciate and understand the interactions between new technologies and politics, has done a significant amount of work in the area of the Internet and its control. The study from this unit which created the most interest, was a report published in the middle of December 199 7, ‘An Appraisal of the Technologies of Political Control’. 4 Unlike most European Parliament documents, STOA reports generally smoulder gently on the shelves of the Parliament’s Document distribution centre, rarely disturbed by demands from the real world. But here the European Parliament had an exception. Newspapers, TV companies and consultants through Europe and beyond – from Manila to Argentina – wanted copies, and they wanted them now. The US Embassy and GCHQ in Cheltenham joined in the rush.
The STOA report examined the currently available technologies for electronic surveillance and civil rights. According to the report, in 1948 – emerging from cooperative efforts during World War II to intercept radio transmissions- an UK-USA Agreement was formalized to continue the mutual monitoring of telecommunications traffic. The prime target was initially the Soviet Union and its Empire. This monitoring has grown and become more sophisticated over the years to become a global system of surveillance involving, apart from the UK and USA, Canada, New Zealand and Australia. The system is now known as ECHELON, and it uses some of the world’s most sophisticated computers to scan phone calls, faxes and emails for intelligence, with each of the five participants selecting its own ‘keywords’ for targeting, unknown to the others.
Much of the background information concerning ECHELON comes from ‘Secret Power’5 the painfully built-up expose of New Zealand’s role in this global surveillance network, published in 1996 by Nicky Hager. Under the Agreement, the five nations were each assigned different international telecommunications satellites serving as relay stations for tens of thousands of simultaneous phone calls, faxes and emails. Unlike many of the surveillance systems developed during the Cold War, ECHELON is patterned in the main for non-military targets, governments, organizations and businesses in virtually every country in the world. This chain of interception facilities taps into all international telecommunications traffic, as well as large parts of domestic traffic around the world. ECHELON has the ability to intercept almost all global telecommunications. The ECHELON system thus works by indiscriminately intercepting and searching telephone calls, faxes and emails on a positively global industrial scale. Computers that can automatically search through traffic for keywords have existed since the 1970s. Now these computers are used in conjunction with the latest electronic technologies to automatically scan all the messages passed through the world’s telecommunication satellites. Two million telephone calls, faxes and emails are checked every hour against the ‘dictionary’ to tag anything which might prove interesting. When a dictionary is triggered, the computers automatically route a copy of the material to the country whose dictionary is in question, where the transmission is printed up verbatim. The contents of the call, the fax or the email are then dumped on the desk of a security operative where it is then read, evaluated and, if deemed necessary, summarized or passed up the system. Alternatively, as the report simply states, ‘within Europe all email, telephone and fax communications are routinely intercepted by the United States National Security Agency (NSA), transferring all target information from the European mainland via the strategic hub of London then by satellite to Fort Meade in Maryland via the hub at Menwith Hill in the North York Moors of the UK’.6
The report also reinforces the disclosures made previously that the former Conservative Government in the UK colluded with other EU Member States to set up an international telephone tapping network based on the EU, USA, Australia and Canada.
In 1995 the EU states signed a Memorandum of Understanding which expressed the new concerns of European law enforcement agencies: first, that advancing telecommunications technologies could prevent them from tapping calls, faxes and emails travelling via more than one privatized service provider or by satellite; second that new encryption technologies could lock the doors to electronic snooping, and, third, the privatization of state-owned telephone companies. In this regard, the Police Co-operation Working Party of the EU reported ‘initial contacts with various consortia has met with the most diverse reactions ranging from great willingness to co-operate on the one hand, to an almost total refusal to co-operate’ – a refusal which might prevent them from tapping private communications. According to Statewatch, the idea was that telecommunications networks and service providers in the EU would be obliged to install ‘tappable’ systems and to co-operate in placing under surveillance any person or group when served with an interception order.7 All of this lies behind concerns in the EU over new telecommunications directives. Now let me make it clear. I have absolutely no problem with the members and fellow travellers of terrorist groups being monitored. In fact, if they were not, I, and the vast majority of my constituents, would be rightly furious.
The interception of communications is an important tool in the fight against crime and clearly we need to ensure that the police and security services can remain informed, as organized criminals and their means of communications become increasingly sophisticated and international. The problem is the technology-driven extension of this to cover effectively the whole population, married to an apparent complete lack of democratic control or accountability. No-one expects police and security services day-to-day operations to be under political control, nor should they be, but such powerful agencies must be accountable in relation to the overarching principles under which they operate. There needs to be political control over the categories of people monitored and over the contents of the dictionary. The STOA report suggests that the keywords ‘Amnesty International’ and ‘Greenpeace’ both trigger the printers. The response that might be made – that monitoring serves to help protect such organizations from terrorist activity only looks laughable when it is recalled that when, on 10 July 1985, the Greenpeace Warrior was sunk by a terrorist attack in New Zealand, there was no prior warning. If the STOA report does one thing, it alerts politicians to the need to reclaim democratic accountability over ever-more capable surveillance technologies. It is vital to have in place institutional and political structures that can direct and control the use of such systems. No-one would suggest the European Parliament should serve such a function, but Member State Parliaments should be looking to senior MPs to act in such an oversight role. The STOA report has already led to the consideration of policy changes on both sides of the Atlantic.
In May 1999, in response to the STOA report, US Congressman Bob Barr, worried by the possible breach of citizens’ constitutional privacy rights, introduced an amendment to the fiscal 2000 Intelligence Authorization Act. This amendment, which was passed by both Congress and Senate, requires that the Director of the NSA, the Director of the CIA and the Attorney General submit reports outlining the legal standards being employed within project ECHELON to safeguard the privacy of US citizens. Formal hearings began in autumn 1999 and will continue in 2000.
In the meantime, in September 1999, as Denmark became the first member state to discuss the implications of ECHELON, the new European Parliament was setting an agenda to discuss a second EP report, authored by Duncan Campbell, on ‘Interception Capabilities 2000’.8 which confirm the role, extent and practices of the NSA’s ECHELON system (www.gn.apc.org/duncan).
A year earlier the European Parliament passed a resolution on the Transatlantic Relations/ECHELON system, which called for ‘protective measures concerning economic information and effective encryption’. During that debate, the then EC Commissioner, Bangemann, stated in regard to ECHELON that ‘If the system were to exist, it would be an intolerable attack against individual liberties and the security of states’. Since Campbell has now provided documentation officially confirming the existence of ECHELON (enlarged by admissions from the Australian Government on May 23, 1999 about their involvement in the UK/USA Pact), the Commission must now hold its own inquiry, particularly in terms of the legal position in regard to the Maastricht agreements.
When the Parliament discusses Campbell’s Interception 2000 report’s findings it will have to ask are EC/EU/EP communications adequately secure and what steps should be taken to case harden official communications?
Campbell points out that ‘Any failure to distinguish between legitimate law enforcement interception requirements and interception for clandestine intelligence purposes raises grave issues for civil liberties. A clear boundary between “law enforcement” and “national security” interception activity is essential to the protection of human rights and fundamental freedoms’. The EU therefore must define its shared interest in implementing other measures to defeat future COMINT activities directed against Member States, citizens and commercial activities. An assessment needs to be made by the EU on how the boundary between law enforcement and ‘national security’ interception activity be maintained in the light of new and emerging technologies and of the steps taken by the ILETS (EU/FBI) Group which Campbell discusses. Given that the activities of this group have led to new standards of telecommunications access being imposed on the manufacturers of telecommunications systems as a standard, there is a grave risk that repressive states are given big brother packages as a standard ‘off the shelf facility.’ It is imperative that, for example, Milosovic are not given such spy systems and also that the Wassanar arrangements (an international arms agreement) be amended to prevent the export of such equipment to countries which do not have the same level of human rights legislation as EC member countries or are acknowledged to be involved in gross human rights violations.
It is difficult to argue against Campbell’s call that as a matter of urgency, ‘the current policy-making process should be made open to public and parliamentary discussion in member states and in the EP, so that a proper balance may be struck between the security and private rights of citizens and private enterprises, the financial and technical interests of communications network operators and service providers, and the need to support law enforcement activities intended to suppress serious crime and terrorism’.
This will entail the discussion of new policy initiatives to protect the EU from illegal mass surveillance of its business telecommunications infrastructure, beginning with the authorization of free and effective encryption. This process is likely to begin in France, where, following the publication of the original STOA report on this issue, the governwment is actively considering legislative measures to accomplish this goal.
In a nutshell, the second STOA report must result in an EC-wide oversight of interception procedures and activities. The key recommendations of Campbell’s report also advise the EU to bring in community-wide legislation which ensures that if foreign imported cryptographic systems have disabled cryptographic features (for example, from the US), then they should be required to conform to an ‘open standard’ which enables member states to restore the same level of security enjoyed by domestic US customers. Until then the EU might consider restricting market access for deliberately insecure surveillance-friendly crippled IT products, including hardware, software and crypto systems.
Such democratic debates on both sides of the Atlantic, taken together, mark the first step in reining in the excesses of this secret global surveillance system and an agency which has undemocratically expanded its mandate to threaten the privacy of everyone.
Of course, it will not be easy for government to win the battle with the intelligence community and to bring a little light into the dark secrets they have been schooled to keep inviolate from those tainted by electoral politics. Yet help may be at hand from forces not normally aligned with those trying to protect civil liberties. The report hints strongly that on occasion the US has not been beyond sharing collateral economic intelligence, picked up in passing, with US companies to tilt the playing-field of international industrial competition in their favour. In British and European boardrooms this will cause more anguish and anger in some quarters than the civil liberties dimension. It may be that, together, European business interests, civil liberties activists and a determined Labour government could force some necessary changes – or I suppose we will all have to start each phone call, fax and email with the word ECHELON.
Notes
1 European Parliament, 1996, Illegal and Harmful Content on the Internet [Online], http://www2.echo.lu/legal/en/internet/communic.html, pp. 1-19 site visited 6 October 1999.
2 European Commission, Information 2000, 1996.lllegal and Harmful Content on the Internet: Protection of Minors and Human Dignity [Online], http://www2.echo.lu/legal/en/internet/presrel.html, pp. 1-4 site visited 6 October 1999.
3 Commission of the European Communities, 1997, Action Plan on Promoting Safe Use of the Internet, Luxembourg: Office for Official Publications of the EC, 1997 COM(97)582.
4 European Parliament STOA Unit (Wright, Steve, Omega Foundation), 1998, An Appraisal of the Technologies of Political Control, September 1998, PE 166.499/Int.St./Exec.Sum.
5 Hager, N., Secret Power, New Zealand’s Role In the International Spy Network, 2nd edn., Nelson, NZ: Craig Potton, 1996.
6 European Parliament STOA Unit (Wright, Steve, Omega Foundation), 1998, An Appraisal of the Technologies of Political Control, September 1998, PE 166.499/lnt.St./Exec.Sum.
7 http://www.statewatch.org/ visited 6 October 1999.
8 European Parliament STOA Unit (Campbell, Duncan, IPTV Ltd., Edinburgh, UK), 1999, The State of the Art in Communications Intelligence (COMINT) of Automated Processing for Intelligence Purposes of Intercepted Broadband Multi-language Leased or Common Carrier Systems, and its Applicability to COMINT Targeting and Selection, including Speech Recognition, April 1999, PE 168.184/part 4/4.