Rule-of-law questions are mounting about the EU’s police agency Europol, following a recent expansion of its powers amid data abuse scandals.
Those powers include the processing and analysis of data of innocent citizens with no links to any crime.
“That was not the case before, now it is allowed,” said Chloe Berthelemy, a senior policy advisor at the Brussels-based European Digital Rights, an NGO.
The Hague-based agency had its powers expanded earlier this year, raising alarms among civil society groups and a number of MEPs over the lack of accountability.
The agency has already been embroiled in scandals, including sharing the personal details of Frank van der Linde, a Dutch peace activist, with the German police. When Van der Linde asked for a copy of those details, the agency wiped it clean, in breach of EU data-protection rules.
Europol has also been caught up over another data scandal involving the EU’s border police, Frontex.
Frontex border guards were feeding the Europol criminal database with details of irregular migrants, ignoring warnings of “function creep” by its own data protection officer.
“We see a big risk for the rule of law,” said Berthelemy, noting a general trend towards predictive policing that largely relies on vast data collection.
This in turn leads to mass surveillance and bulk data analysis, via algorithm-processing, based on pre-determined criteria such as country of origin, migration status and gender, she said.
She said predictive policing restricts rights, including the presumption of innocence, right to privacy and non-discrimination.
Europol and Frontex have since created a joint-working group, known as the Future Group on Travel Intelligence and Border Management. That joint endeavour aims to create a new surveillance programme at the EU’s external borders based on large-scale profiling and artificial intelligence.
Berthelemy’s views were echoed by Laure Baudrihaye-Gerard, legal director at the London-based Fair Trials NGO.
“We see this expansion of EU policing as a real rule-of-law threat,” she said.
Baudrihaye-Gerard said law enforcement authorities should not have a “blank cheque” to act however they want. “It’s about giving the ability of law-enforcement authorities to be held accountable,” she said.
Europol says it is held to account by EU justice and interior ministers, some of which represent governments that have themselves been accused of using illegal spyware against journalists and political opposition leaders.
But aside from a more weakened role by the European Data Protection Supervisor, Europol appears largely unchecked from outside scrutiny.
The agency has created the role a Fundamental Rights Officer, yet to be hired, to ensure compliance. But that person will be appointed by the management board of the agency, based on a proposal by the executive director.
He or she will also only be able to report to the director — posing questions on the independence of the role.
“It’s a first step, certainly not enough, because we wanted also an independent supervision of the agency,” said Belgian Green MEP, Saskia Bricmont.
Bricmont says there are worrying gaps in the supervision of both Europol and Frontex, an issue that is troubling given they both work in the field of law enforcement and migration.
This could pose a number of problems.
An undocumented migrant who reports a crime to the police in Belgium and the Netherlands may have his personal data shared with immigration authorities.
Undocumented women in the UK, when it was still an EU member state, ended up being arrested after reporting a crime given their residency status.
Oyidiya Oji, a policy advisor for the European Network Against Racism, describes it as the criminalisation of marginalised people.
“In France, black people and people from North African heritage are 20 times more likely to be stopped in the streets,” she said.
That criminalisation may extend beyond the borders of the EU.
Cairo and Ankara access
Europol is not an executive body, unlike Frontex — which will have some 10,000 armed guards under its command.
Instead, it has instead become a data hub for EU states as well as for crony governments in Turkey and Egypt.
Restrictions on sharing such biometric data with countries like Turkey and Egypt were further weakened by the co-legislators earlier this year.
In a report out Thursday, Statewatch, a civil rights organisation, says that Europol may end up being used “as a conduit for harassing political opponents and dissidents.”
Turkey already has a long history of such abuse.
Over the years, it has used Interpol, an international law enforcement agency based in Lyon, to issue arrest warrants against government opponents and critics.