Edward Snowden, lawyers and MEPs

After a short tussle between left and right, it has finally been decided that Edward Snowden will give video evidence to the European Parliament in mid-January. On behalf of the Council of Bars and Law Societies of Europe (CCBE), I myself gave live evidence a few days ago before a hearing of the Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) into the impact on lawyer-client confidentiality of the Snowden revelations of mass data surveillance by governments.

The room was full, but not of MEPs. I still haven’t worked out the identity of the rest of the audience, but they were probably representatives of interested NGOs. By the time I rose to speak, there were only four MEPs left, three of whom were on the podium running the meeting – and the fourth was the lead reporter on the data protection package.

Interestingly, although there was availability of interpretation into many EU languages, everyone spoke only in English, despite it rarely being their native tongue. This reminded me of research I came across a little while ago which said that voters in non-anglophone countries should bear in mind the English language capabilities of their candidates for the European Parliament, since an MEP is likely to be more effective if able to speak in English, given the number of English-only meetings.

The European Parliament has an interesting angle on the Snowden case, which distinguishes its investigation from similar exercises being undertaken by, say, the Home Affairs Select Committee in the House of Commons, or by other national parliaments. That is because there is no EU spying agency (although even that was somewhat disputed during the hearing, since the European External Action Service has apparently an information-gathering function). But it is clear that national security is a domestic competence, and that the EU as an entity – despite allegedly being spied on itself during the recent mass surveillance – does not have an agency or developed capability to spy. That frees its parliament somewhat.

Along the same lines, I note that national bars around the world have been a little constrained by their own governments when raising the impact of mass surveillance on lawyer-client confidentiality, not only because governments usually think spying is a good thing, but because their governments have often themselves been implicated in the gathering of mass data. Bars have understandably complex relationships with their governments, and are unwilling to antagonise them unnecessarily. That is why the European Parliament is a good, if maybe one-sided, forum of investigation, being unburdened by spying history. And before lawyers complain about it being one-sided, we should bear in mind that, to my knowledge, this is the only parliament which has called on lawyers to give evidence about how the revelations affect our core principles.

As to what I said, I rehearsed the view that confidentiality had been irreparably (if only partially) broken, and that there was no solution in sight. This was a blow to democracy itself, since one of the mechanisms for correcting society’s mistakes, and for resolving crucial disputes (civil and criminal) in a fair way, had been disabled. They were interested in the CCBE’s recommendations, which are threefold: EU level protection for professional secrecy from government surveillance; EU minimum standards for electronic surveillance, including on grounds of national security; and guarantees that electronic communications and cloud computing will be secure for professional secrecy.

One MEP pointed out that the first two are beyond the competence of the EU, and the third impossible. But I am not so pessimistic. It is true that, as stated, national security is not an EU competence. However, guidelines from a body like the EU – regardless of competence - can be a powerful lobbying and influencing tool. And, on the technical front, I think that it should be possible for lawyer-client communications to be identified for the purpose of exemption from surveillance. I might be naïve, but with goodwill from a government, it is not difficult to build a system which could work. For instance, the CCBE is now designing a mechanism, for the purposes of cross-border electronic proceedings, to verify a lawyer’s role through data provided by the bar - and so why cannot this same verification be used to exempt lawyer-client communications from surveillance?

I am patiently awaiting the invitation from the Home Affairs Select Committee to repeat my performance.

Jonathan Goldsmith is secretary general of 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