The war on terror continues to gnaw on civil rights

Just i few weeks ago, the European Parliament approved the gathering of Passenger Name Record (PNR) data for all flight passengers entering or leaving EU. The Parliaments summary of the stakes conclude:

“PNR data would enable law enforcement authorities to identify previously “unknown” persons, i.e. those previously unsuspected of involvement in serious crime or terrorism, but whom an analysis of the data suggests may be involved in such crime and could be further investigated by the authorities.”

The term “unknown” is unsettling.

In contrast to the current measures Advance Passenger Information (API) the Schengen Information System (SIS) and the second order Schengen Information System (SIS II), which only enables law enforcement to search for previously known suspects, this directive opens up for the investigation and tracking of individuals using airline passengers’ data irrespective of whether or not they are suspected of any crime. It is not a far drawn conclusion that some form of broad trawling will occur.

What will be the effect of such broad trawling of travel records and personal information, and the storage of the same? In opposition to API, stored records are just that – stored, and can then mostly be used after something has happened, or to track individuals of suspicion, but its effect in preventing a new attack is doubtful. Especially since would-be terrorists can read open media as well as anyone, and supposedly have no problems adjusting their travelling schedules to stay under the radar. If that happens what is the next step? To turn up the volume? Today’s directive is limited to external airborne travel (p.3). If it would be extended to internal EU travel – which will come under consideration in two years time – EU will have taken a first step from a union promoting free trade to a nation of surveillance.

Will this happen? It seems the exclusion of intra-EU flights is not primarily because of concerns for data protection, but a request from air carriers (p.7), who feel this would “imply heavy costs and an unfavourable competitive position compared to other
transport modes”. Including other modes of transport in the directive would surely solve the unfairness in competitive position and has also been proposed in the 2011 working paper on impact assessment (p.38).

The combination of an extension to internal-EU flights and all modes of transport would certainly be happy days for programmers and IT-technicians. Worse days for passengers who will most likely be stuck with the effect of this through higher ticket prices. The worst of days for anyone concerned with personal privacy.

It seems, the concern for terrorist activity has tipped the opinion of policy makers in the direction of efforts to improve security instead of civil liberties. With no regard for the fact that terrorists have repeatedly shown the ability to strike despite all such efforts. From a terror perspective, one target may be just as good as another. If one seems to hard to reach, there is always a plan B, a strategy well demonstrated by the Brussels attack. It is thought that, after the Paris attack on Friday, 13 November 2015, a second one was planned, but that the target changed, and the schedule was rushed as a result of successful efforts from law enforcement.

For a terrorist, harder oppression is rarely a problem. But a terror organisation that cannot recruit has a worse problem. In a dictatorial police-state, terrorist activity is next to impossible. But harder pressure from the enemy (the free state) will also mean just the opposite – more potential candidates willing to sign up.

For the free state, the situation is reversed. Tools of surveillance, oppression and interference in civil rights will – maybe – make the single terrorist easier to catch, but what’s the point, if – by that time – the free state is no longer free? It’s a lose-lose situation.

Secondly, once tools of oppression are created they are there to stay. Today, these tools may be wielded by law enforcement and government officials in more or less transparent democracies in which we believe we can trust, but what happens when this is no longer the case? Governments change, but the tools we hand them remain.

Terrorists seek publicity by spreading fear and chaos, but also seek to polarise the debate and create a harder climate between “us” and “them”. Unfortunately there is no shortage of politicians anxious to help them along by demonstrating to the press and the public that they areĀ  taking resolute action. If the resolute action is effective or not, does not appear to be under much consideration. Nor is there a shortage of IT and defence firms seeking new markets. No conspiracy theories needed – a self-driven spiral of common interest will suffice. By enforcing more and more restrictions, we are slowly creating a society less and less like the the society we want, and more and more like one the terrorists would like.

The European Data Protection Supervisor, discussing PNR systems more generally, has noted that (p.4):
“The fact that recent technological developments currently render wide access and analysis possible […] is not in itself a justification for the development of a system aimed at the screening of all travellers. In other words: the availability of means should not justify the end.”

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