Defying the logic, forgetting the facts: the new European proposal for data protection in the police sector
The European laws surveilling surveillance may possibly soon become more complex or more uncertain, depending on developments during the next 12-36 months.On the 25th January 2012 the European Commission published two, not one, proposals for new legislation in the ever-growing field of privacy and data protection. One of these two proposals is the mildly-named but potent "Regulation" covering most sectors of activity except for the law enforcement and criminal justice sectors which are proposed to be governed by a separate Directive. Both the Article 29 Working Party and the European Data Protection Supervisor in March 2012 overall welcomed the Draft Regulation, whereas they strongly criticised the Draft Directive which is regarded as being greatly inferior to the Draft Regulation. This level of criticism begs a number of important questions: why is the police and justice sector being handled differently and separately from other sectors? Why does the current (1995) data protection directive allegedly lead to fragmentation to the extent that in 2012 the Commission proposes a Regulation to replace it yet at the same time, almost in the same breath, in 2012 and still in 2013, it is proposing that the Police and Criminal Justice sector be regulated by a Directive? Would the new Directive on Police use of personal data not produce the same level of fragmentation as the old 1995 Directive did in other sectors? Is this not inconsistent? This paper examines whether these new laws are fit-for-purpose by first laying out the realities that the law must presumably set out to regulate. It then examines the problems with the logic and indeed the credibility of some answers provided publicly by the European Commission. After dealing with the logical inconsistencies implicit in the current approach, the paper questions the usefulness of the Draft Directive from a substantive point of view and especially in the wake of the Snowden revelations about the modalities of surveillance being employed world-wide. Utilising summary findings from the PUPIE project, this paper makes the point that, in fact, most of the principles of the Draft Directive are already provided for in the laws of many EU member states so the degree of legislative innovation being proposed is questionable, the harmonization benefits may be minimal, while the allegedly undesirable fragmentation will remain. The paper then traces how, since May 2013, the European debate on data protection was overtaken by,and now benefits from, the revelations made by Edward Snowden. It demonstrates the relative legal impotence of the EU in such matters on account of the fact that matters of national security are reserved to national governments by virtue of Article 4 (2) of the EU Treaty. After analyzing the relevant developments to end October 2013 the paper concludes that the most suitable, and possibly - though not necessarily - the most likely option to European policy-makers is that of pushing for a new Council of Europe convention on Cyber-Security in an effort to balance the privacy and security interests inherent to a debate about surveillance.