Authoritarian Britain is made freer by the EU

The European Union has helped curtail the British state's repressive surveillance.

European Court of Justice, By sprklg, Kirchberg, CC BY-SA 2.0

‘You know, you go to protests in Germany and in France and they just don’t do
that level of intelligence gathering. And when I’ve spoken to activists in Europe
they talk about Britain as in, as if it’s this fortress. “You can’t possibly break the
law,” you know, you — people say “oh, yeah, you know this person spray painted
this bank.” And people are like “oh, did they get caught? Presumably in Britain,
you know it’s such a surveillance state.”’

Proponents of Brexit love to paint the European Union as an authoritarian
institution which poses an existential threat to an ancient tradition of British (or
English) liberty. Those who have come into meaningful contact with British
domestic security practices, such as the anonymous British activist quoted
above, beg to differ.

While the European Union may not have a perfect record in standing up for the
privacy rights of its citizens, there is no reason for thinking that Britain would do
better on its own. On the contrary, if anything, European institutions have played
a role in helping to counterbalance some of the UK’s more draconian tendencies.

Perhaps the most problematic piece of European legislation for those concerned
about state surveillance of their day to day lives is the Data Retention Directive,
which requires member states to store records of citizens’ phone and online
interactions (though not the ‘content’ of these interactions) for between six
months and 2 years. The IP address and time of use of every email, phone call
and mobile text message sent or received within the EU have been made
available to police and security authorities’ requests.

Ironically, this piece of legislation was the brainchild of the Blair-­‐‑era British
government, which took advantage of the aftermath of the 7/7 bombings to push
the measure through the European Council. And yet, two years ago, in a dramatic
challenge by Digital Rights Ireland, the European Court of Justice overturned the
directive on the grounds that it was incompatible with fundamental rights. The
Commission did pressurise Member States to implement the legislation and
could still introduce a new version that takes account of this judgement, but has
not yet produced one.

On the other hand, the European Commission has also passed the Privacy
Directive, which is a useful instrument protecting the rights of European Citizens
relative to the data amassing powers of large Internet corporations. The Austrian
law student Max Schrems became a poster-­‐‑boy for the powers of the directive
when he successfully forced Facebook to provide him (in a mountain of pdf
documents) all the data they held on him. No doubt Facebook saw this as an
example of just the kind of ‘red tape’ Brexiters rail against.

While far from perfect, the European parliament has also played an active role in
defending the digital rights of European citizens. The parliament called European
authorities and member states to do more to safeguard citizens' surveillance
concerns in response to the Snowden leaks. In a 2015 resolution it urged the
commission to ensure that all data transfers to the US are subject to an adequate

level of protection, criticised recent surveillance laws in several EU countries
(including the UK) and even asked EU member states to grant protection to
Edward Snowden. Although one can debate the extent of the EPs real impact on
these questions, at least it has served as a forum where European electronic
rights activists concerns have been heard and welcomed.

By contrast, the UK has shown that it is perfectly capable of developing highly
expansive ways of spying on its own citizens without any need for interference
from Brussels. Much has been made of the supposedly ‘unlawful’ data-­‐‑sharing
relationship between the UK’s spy agency GCHQ and America’s NSA, based on a
ruling last year by the Investigatory Powers’ Tribunal. In reality, what is perhaps
more shocking is that the Tribunal actually found that GCHQ’s relationship with
the NSA was, apart from one small and ‘entirely hypothetical’ possibility ‘lawful
and human rights compliant’. This was the same arrangement that saw GCHQ
(with NSA’s massive technical assistance), tapping transatlantic fibre optic cables
that allowed it to spy on virtually the entire Internet. The Tribunal’s report is a
testament not to the restrained nature of trans-­‐‑Atlantic intelligence sharing, but
to the toothlessness of British laws regulating surveillance.

If Britain leaves the EU and (a near certainty in the event that it does) the
European Court of Justice and (potentially) European Court of Human Rights as
well, it is almost certain that British police and intelligence will still want to
cooperate with their European counterparts in much the same way as before. All
that will have been removed are human rights and democratic safeguards
presently available to hold this to account. We know the people who are likely to
be in charge after an EU exit vote have spoken of trying to reorient the UK’s trade
and freedom of movement relationships towards other English speaking
countries. In surveillance-­‐‑land, this is already largely the case. Britain freely
shares intelligence and helps to spy on the world through the ‘Five Eyes’ club of
English speaking countries. In the modern world, of course, intelligence sharing
is often vital. But where there is transnational power, there ought also to be
transnational responsibility. For all its faults, the EU can, on occasion, offer the
clout in a globalised world to hold others to account on behalf of its citizens. A
global web of opaque arrangements between secretive agencies in which the
strongest individual powers exercise a policy of divide and rule is the likely
alternative.

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