A resolution which would allow European policing agencies "backdoor" technological access to private emails, faxes and mobile phone calls was quietly passed by the European Parliament last Friday. The resolution would also require telecommunications companies and Internet service providers to foot the bill for developing the surveillance system entailed in the process.
"It's real Big Brother stuff," says Green Party MEP Ms Patricia McKenna, who strongly opposes the resolution. "It completely conflicts with the current laws on data protection and privacy."
Legal observers believe the broad scope and imprecise language of the resolution, called Enfopol 98, would allow law enforcement officials to conduct surveillance without a search warrant. It would also require communications companies which provide their customers with encryption products - methods of encoding their messages - to automatically hand over to police a copy of the electronic "keys" that decode the messages.
According to a New York Times article last Friday, Enfopol "stipulates that this back door must provide law enforcement officials with a subscriber's location, address, account details, credit card number, and personal identification number, in addition to real-time access to communications".
Such access would be immediately available to police via a computer terminal and would not require a search warrant, the article said. The proposal is intended to support greater co-operation between European policing networks and offer them stronger tools for combating criminals who use newer technologies.
The resolution was immediately denounced by privacy advocacy groups including Britain's Statewatch and Privacy International, and the San Francisco-based Electronic Frontier Foundation. Britain's Labour Party has stated its support for the measure.
However, because Enfopol was approved as a Parliamentary resolution, it is non-binding on EU member-states. Each state must decide whether to develop legislation based upon the resolution. But because of the rapid growth of the Internet and other technologies, most states need to update their current legislation on law enforcement's use of technologies.
According to EU officials who supported the s resolution, Enfopol 98 is a "technical specification" which can be used if member-states decide to draft new wiretapping and surveillance legislation. Last week's vote indicated Parliamentary support for the original Enfopol resolution, which was drafted last year by the Justice and Home Affairs Council, comprising justice ministers from EU member-states.
According to Ms McKenna, the Dail has never debated the resolution despite its wideranging impact on personal and corporate privacy. She has never been able to confirm how Ireland voted or if the State intends to also support the adoption into Irish law of the resolution.
She says the original justice ministers' resolution was also quietly introduced, and was mostly the result of written procedure rather than open debate. The ministers meet again on May 27th-28th and are expected to make Enfopol a formal resolution and thus, official EU policy. EU sources believe they will then push for it to become a directive.
A report on the resolution was prepared by the EU's Civil Liberties Committee, which supported it. But the Legal Affairs Committee, which was asked to comment on the report and the resolution, was "very critical", says Ms McKenna.
"The key thing, though, is what our own ministerial position is and I have not been able to get information in our own country."
Barrister Mr Denis Kelleher, who specialises in law and technology, says the resolution seems to run counter to other EU directives on privacy. "In Europe, the law on privacy is quite strict," he says, ranging from guarantees in the European Convention on Human Rights to last year's updated Data Protection Act.
In addition, he says, Irish citizens have further protections clearly stated in Article 40.3 of the Constitution, which was upheld in the courts in the 1986 phone-tapping case involving journalist Geraldine Kennedy and Bruce Arnold. Current Irish law on the interception of telecommunications messages is also strict, he says.
Mr Fergus Glavey, Ireland's data protection commissioner, says the resolution "seems to me to raise the old data protection-type issues. Technology is capable of a whole lot of things," he says. "It's not a question of what can be done, but what should be done."
Under current EU directives, surveillance is allowable when supported by "due cause" and cannot be used to conduct "fishing expeditions" for evidence on individuals, he says.
A working group consisting of the European data commissioners and their representatives have noted specific concerns about the original Enfopol resolution. It recommends that "exploratory or general surveillance on a large scale" should be prohibited.
One of Ms McKenna's concerns is that few legislators or individuals seem aware of or interested in Enfopol. "It's incredible that people don't know about this," she says. "It's very difficult to get people interested. Perhaps only when it's too late will people come back and say, "how did this happen?".
