He
urged the European Parliament to support plans for EU laws on the
retention of telecommunications data, updating the Schengen
Information System (which allows citizens from participating Member
States to travel throughout those states without checks at internal
borders) and in establishing a new Visa Information System.
Each of these proposals has faced criticism from civil liberties
groups concerned that they herald the coming of a surveillance
society.
But the political environment is changing, largely due to 9/11
and the Madrid and London bombings, and the UK Government, which
holds the EU presidency until January, is determined to push the
measures through.
Speaking in Strasbourg today, Charles Clarke warned MEPs that no
country could tackle the problems of international crime, terrorism
or international migration alone.
“The truth is that in each of these areas we will all, including
within our own countries, achieve most by sharing experience,
information and resources and by identifying, and then targeting,
the threats systematically and consistently,” he said.
Given that criminals and terrorists use the internet and mobile
communications, Clarke argued that we need to "know what they are
communicating". But he sees human rights legislation as an obstacle
that makes it difficult for law enforcement agencies to obtain the
information needed to tackle the threats against our society
effectively.
Clarke says agencies need to be able to access
telecommunications data held by ISPs and telcos, or by the
Schengen Information and Visa Information Systems. He also called
for visas, passports, identity cards and driving licences to
contain biometric data.
He countered criticism that civil liberties would be threatened
by these measures by arguing that the right to privacy, the right
to property, the right to free speech and the right to life are all
under threat from criminals and terrorists.
“We have a duty and responsibility to help protect them for our
citizens through practical measures,” said Clarke. “As we consider
how best to do this there will always and inevitably be a balance
in rights. What matters in each case is that the steps are
proportionate and that protections against abuse are effective. I
believe that our proposals offer that.”
He cited the retention of telecommunications data as an
example.
Retention of data
The UK, France, Ireland and Sweden have been pushing for a
Framework Decision on the retention of communications data for over
a year.
This is the data that identifies the caller and the means of
communication (e.g. subscriber details, billing data, email logs,
personal details of customers and records showing the location
where mobile phone calls were made) but not the content of the
communications.
The draft Framework Decision allows Member States to opt-out if
they do not find the purposes behind the draft sufficient to make
the retention acceptable.
The draft, as amended by the former Dutch presidency of the EU,
proposes a minimum period of data retention of 12 months and leaves
any maximum limit to the discretion of Member States.
Provisions are also made for the access by one Member State to
data retained by another Member State. Data protection safeguards
are included, and there is an obligation on each Member State to
ensure the security of the data retained.
But these proposals were rejected by the European Parliament in
June, while the Commission is due to publish its own proposals on
21st September.
A leaked copy of the Commission's own draft Directive indicates
that it is seeking shorter data retention periods than the draft
Framework Decision: maximums of one year for data from phone calls
and six months for internet-related communications data.
The UK already has legislation in place allowing the retention
of and access to telecommuncations data and, according to Charles
Clarke, it “is proving invaluable in the current investigations
into the London attacks and in many cases in the UK it has proved
essential to solving crimes often months after they were
committed.”
The legislation generally targets data already collected by a
company for business purposes and, according to the Home Secretary,
is not excessively costly. He cited a UK partnership project set up
with a service provider to retain data for up to 12 months. This
cost €1.2 million which he described as an acceptable sum when
compared to the average cost of €0.5 million for the forensic work
on a single murder case.
“There is perhaps a more general concern that the proposal is an
unnecessary invasion into privacy or that it is disproportionate,”
he acknowledged, but explained that he considers this concern
misplaced because, in many cases, “the victim’s right to justice
was only achieved through the retention of telecommunications
data.”
More details of the Home Secretary’s arguments are set out in a
paper entitled “Liberty and Security: Striking the Right Balance.”
It was not available at the time of writing.
Civil liberties concerns
Measures such as the data retention proposals, biometrics and
the Schengen Information System will enhance the sharing of
information rather than unnecessarily invade privacy, said the Home
Secretary,. However, he conceded the need for a clear legal basis
and safeguards for each measure.
The Home Secretary then called for a careful look at the way
courts are interpreting the European Convention on Human Rights. He
explained:
“Our strengthening of human rights needs to
acknowledge a truth which we should all accept, that the right to
be protected from torture and ill-treatment must be considered side
by side with the right to be protected from the death and
destruction caused by indiscriminate terrorism, sometimes caused,
instigated or fomented by nationals from countries outside the
EU.
“This is a difficult balance to get right
and it requires us all as politicians to ask where our citizens –
who elected all of us here – would expect us to draw the line.”
According to Bloomberg.com, Clarke told reporters yesterday that
if judges did not begin to change this balance “then the conclusion
will be that politicians such as myself will say OK, we've got to
have a change in the regime.''
He promised to discuss the matter in a meeting of European
Council Ministers, due to take place in Newcastle later this
week.
Commission response
Franco Frattini, the Commissioner for Justice, Freedom and
Security, also speaking today before the European Parliament,
welcomed the Home Secretary’s determination to fight terrorism, but
cautioned against any erosion of civil liberties.
“We should never be tired to repeat that when working on
security we have to keep a balance between law enforcement
activities and the protection of other fundamental rights,” he
said. “And we have to balance prosecution activities and
privacy."
He said that the proposal on data retention will be considered
together with data protection in October.
He warned that at the moment there are 25 different data
retention regimes within the EU and stressed:
“The key concept is the assurance that only
for specific objectives (the fight against terrorism and organised
crime) and under the supervision of independent authorities, such
as the judiciary, will data be processed for a definite period of
time.”
According to Reuters, Graham Watson, leader of the Alliance of
Liberals and Democrats in the European Parliament, pointed out that
freedom and security are not alternatives. “Much as the public may
dislike it, suspected terrorists have rights," he said.
