Greetings from a failed state

I live in a failed state, so I am told. ISIS’s outpost in Europe is just a few kilometres from my house at Molenbeek. Brussels continues to be in a state of high alert as I write this.

Europe’s most wanted man is presumed to be hiding somewhere nearby. We have been cowering in our house all weekend on the advice of the government.

This is a good time to talk about that most challenging topic, the balance between liberty and security - in particular, how the balance should play out in state surveillance. When our lives are at risk, we are quick to pray that the intelligence services know where and when the next threat will materialise, regardless of the niceties.

After a slow start over the last few years, there is now a rush of material to help us untangle the dilemmas at stake. Nils Muiznieks is the Council of Europe’s commissioner for human rights. He may now regret the timing, less than three weeks before the Paris attacks, but he published an article in the New York Times on 27 October called ‘Europe is spying on you’. As he reports, the UK is by no means alone in moving towards granting more intrusive powers to its security services through mass electronic surveillance. He recounts some of the activity in other member states.

France, for instance, has recently adopted its own version of the Investigatory Powers Bill - law number 2015-912 of 24 July 2015, called ‘Loi Renseignement ’. He does not mention it, but the Paris Bar and the French National Bar have submitted complaints about it to the European Court of Human Rights (a previous effort to overturn parts of it failed before the French Council of State). Although the new law forbids surveillance of lawyers in the exercise of their profession, the French bars are not happy with the definition of ‘exercise of their profession’.

When does it begin and end? They say it is a commitment in principle only, with no guarantee of how it will be applied in practice nor any sanction for its violation, and it does not forbid the surveillance of a client who might talk to his or her lawyer.

Germany, Austria, the Netherlands and Finland are all cited as also either having passed or about to pass legislation giving the security services greater access to data.

Last week, the EU’s Fundamental Rights Agency published a report on the same topic, at the request of the European Parliament. It is called ‘Surveillance by intelligence services: fundamental rights safeguards and remedies in the EU’. For those who follow the subject closely, it has interesting material on how intelligence activities are monitored in other member states, and points out in its conclusion that systems set up to oversee applications to monitor an individual are inadequate for surveillance of the whole population. It also reminds us that the French case to the European Court of Human Rights mentioned above is not the only one – there are others on mass surveillance waiting to be heard.

Finally – and this finally is only for the purposes of this article, and not because I have reached the end of recent publications – the University of Amsterdam’s Institute for Information Law published in July 2015 ‘Ten standards for oversight and transparency of national intelligence services’. These may prove useful in the current UK debate on the Investigatory Powers Bill. Without going through all 10, here are some of interest:

• Oversight bodies should be able to declare a measure unlawful and provide for redress;
• Oversight should incorporate the adversary principle (meaning that a special advocate can argue in adversarial proceedings before the body on behalf of the public interest or the interest of affected individuals);
• Oversight bodies should have sufficient resources to perform effective oversight;
• (and probably betraying that some of the report's funding came from Google) Companies and other private legal entities should be able to publish aggregate information on surveillance orders they receive.

The current belief is that Europe’s most wanted man is still in Brussels, trying to get to Syria. He has recently been speaking to his friends by Skype. While I cower in my house, I wonder why the intelligence agencies have not monitored his use of Skype and swooped on him within seconds. That is what this topic does: pitch personal interest against public interest, without easy answers.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs