MOSCOW, January 9 (RAPSI, Ingrid Burke) - After vehemently condemning mass surveillance programs exposed in recent months by NSA whistleblower Edward Snowden, a draft report published this week by the European Parliament’s Committee on Civil Liberties, Justice, and Home Affairs called on the US and EU member states to impose a ban on blanket mass surveillance and bulk personal-data processing.

Notably – as the report is still in draft form – it lacks legal effect. Committees can be called on to draft reports on a particular policy issue within its competence. According to the European Parliament’s website, “Once a draft report has been written it is presented and discussed in committee meetings, and members may propose amendments if they wish.”

Motion for a European Parliamentary Resolution

The draft, compiled by Rapporteur Claude Moraes, includes a Motion for a European Parliament Resolution asserting that certain revelations exposed by former NSA contractor Edward Snowden have rendered it imperative for elected leaders to deal with the balance between the rule of law and increased intelligence capacities.

The draft motion notes that while the European Parliament wholeheartedly supports the fight against terrorism, that in itself cannot serve as justification for the “untargeted, secret and sometimes even illegal mass surveillance programmes.”

The motion goes on to condemn “in the strongest possible terms the vast, systemic, blanket collection of the personal data of innocent people, often comprising intimate personal information.” The motion further emphasizes that “systems of mass, indiscriminate surveillance by intelligence services constitute a serious interference with the fundamental rights of citizens,” and stresses that privacy is a fundamental right, not a mere luxury.

Furthermore, freedoms such as those of the press, speech, and thought are faced with potential threats under the shadow of such sweeping mass surveillance activities, according to the draft.

The proposed motion goes on to outline a broad range of initiatives aimed at curbing detriments posed by the surveillance programs.

Explanatory note

An explanatory statement included in the draft report explains that the Snowden leaks have fostered two general schools of thought among the public. 
Some – the report explains – deny the legitimacy of reports arising from the revelations based on concerns that they are anchored in misinterpretations of the leaked information, or voice concerns about the potential of the leaks to adversely impact security and anti-terrorism initiatives.

Others view the disclosures as evocative of a public debate with regard to the interplay between the intelligence programs and such crucial issues as fundamental rights and the rule of law.

Arguments in favor of refraining from action 

According to the report, the school of thought adopted by the EU could determine whether or not it should act on the disclosures. The draft goes on to list five arguments favoring restraint on behalf of the EU, and give arguments favoring action.

The five arguments for restraint include those centering on the following concerns: intelligence and national security, terrorism, treason, realism, and good government.
Among the reasons not to react is the “intelligence/national security argument.” The draft notes that the EU has no competence over national security except as regards EU internal security. As this is a national competence, this argument would lead to the conclusion that action at the EU level is not possible.

Likewise, the “terrorism argument” holds that the follow-up to or consideration of the leaks would threaten to weaken US and EU security as any documents published threaten to expose valuable information to terrorists.

The “treason argument” is described by the draft in the following terms: “any debate launched or action envisaged further to E. Snowden’s revelations is intrinsically biased and irrelevant as they would be based on an initial act of treason.”

The “realism argument” holds that it would be strategically favorable to exercise restraint in this context in order to “maintain the special relationship between the US and Europe to preserve shared economic, business and foreign policy interests.”

The “good government argument” is based on the theory that as far as security is concerned, there should be a presumption that the government or governments in question – granting they are democratically elected – are acting in compliance with democratic standards.

Citing the strength of the above arguments, the draft speculates that they explain the general restraint shown by most EU governments up to this point.

Arguments in favor of action

The five arguments for action include those centering on the following concerns: Orwellian mass surveillance, fundamental rights, EU internal security, deficient oversight, and free press.

Describing the “mass surveillance argument,” the draft notes the consistency with which references have been made to George Orwell’s 1984 since the first disclosure was made early this summer. The report adds that an increasing emphasis on security since the commission of the 9/11 attacks have proven detrimental to the notion of privacy.

The draft asserts with regard to the “fundamental rights argument” that “mass and indiscriminate surveillance threaten citizens’ fundamental rights including right to privacy, data protection, freedom of press, fair trial which are all enshrined in the EU Treaties, the Charter of fundamental rights and the [European Convention on Human Rights,” and warns that such rights cannot be circumvented or negotiated without legitimate legal instruments provided in compliance with these treaties.

The “EU internal security argument” holds that the fact of national competence over intelligence and national security matters does not exclude parallel EU competence in these arenas.

The “deficient oversight argument,” as asserted by the draft, holds that “while intelligence services perform an indispensable function in protecting against internal and external threats, they have to operate within the rule of law and to do so must be subject to a stringent and thorough oversight mechanism.” This theory holds that while democratic oversight of intelligence programs occurs at the national level, the increasingly international nature of security threats and the resultantly expanding scope of international cooperation between EU member states and third countries such as the US calls for improvements in oversight methods.

The “chilling effect on media” argument asserts that the media plays an imperative role in democratic society and needs to be protected.

With regard to these arguments, the draft urges the EU to act. In its words: “The European Union is called on to choose between a ‘business as usual’ policy (sufficient reasons not to act, wait and see) and a ‘reality check’ policy (surveillance is not new, but there is enough evidence of an unprecedented magnitude of the scope and capacities of intelligence agencies requiring the EU to act).”

The report calls for a variety of actions, which would serve collectively as a basis for the so-called “European Digital Habeas Corpus for protecting privacy.” Among other things, these actions would aim at protecting the rule of law and the fundamental rights of EU citizens, as well as at the development of a European strategy for IT independence at both the national and EU levels.