2013 Conference abstracts

2013 Conference abstracts

9.30 10:45 Research Session 1: Governance of Security

Location: 1004/5 Old College

Chair: Roderick Lonie

1. Raphael Bossong

The European Programme for the Protection of Critical Infrastructures – an impossible challenge for EU security governance?

2. András Huszár

The fight against EU environmental crime post the Lisbon Treaty

1. Transatlantic Relations and EU cyber policies: legal issues of EU security rule-making (Cancelled )

Dr. Elaine Fahey,

Postdoctoral Researcher,

Amsterdam Centre for European Law and Governance (ACELG)

E-mail: E.L.FAHEY@UVA.NL

The implementation of the European Union (EU) Internal Security Strategy has included the pursuit of many transatlantic Justice and Home Affairs measures, such as the EU-US Passenger Name Records, EU-US Terrorist Financial Tracking Programme Agreements and the EU-US Cyber Security and Cyber Crime Working Group. The success of the former has inspired the EU to pursue similar policies internally.

The legal objectives of the latest EU-US cooperation in Cybercrime and Cyber security appear curious in comparison with comparable internal EU policies. For example, the EU and US expressly aim to engage in global rule-making, including advancing EU ratification of the Council of Europe Convention on Cyber-crime, of which the US itself is not a member and which several EU States have yet to ratify. By contrast, an EU Cyber Security strategy is still embryonic and the subject of interinstitutional disputes. EU bodies established to engage in Cybercrime monitoring lack legal overarching infrastructure and overlap with other EU agencies. This paper considers legal aspects of EU-US Cybercrime and cyber security and comparable EU policies.

New 1. The European Programme for the Protection of Critical Infrastructures – an impossible challenge for EU security governance?

Raphael Bossong,

IFSH,

Hamburg & Europe Viadrina University,

Frankfurt O.

E-mail address: bossong@europa-uni.de

This paper discusses the EU’s efforts in the area of critical infrastructure protection, which is one of the objectives of the EUISS. The first part argues that critical infrastructure protection constitutes a paradigmatic as well as challenging case for European security governance, but has received only limited academic attention. The paper then turns to a heuristic framework to map the EU’s capacities to ‘meta-govern’, i.e. to stimulate and steer governance efforts across multiple sectoral and political divides. On this basis, the third empirical part critically surveys the development of the EPCIP. Authoritative problem definition and legal regulation has remained narrow, while the EU’s related budget is small, but may become linked to more substantial funding lines under the new financial perspective. EU efforts to stimulate operational and scientific networks have met with mixed successes, but could be increasingly complemented by private actors, as exemplified in the related area of cyber security.  Finally, EU’s formal organizational capacity in CIP is ill-understood, as involves little known actors such as the Joint Research Centre.

New 2.
The fight against EU environmental crime post the Lisbon Treaty

András Huszár,

Law Division,

University of Abertay Dundee.

E-mail address: drhuszarandras@gmail.com

Environmental crimes often have a cross border aspect. Therefore environmental crime is a serious and growing problem that needs to be tackled at European level.[1] One of the most important changes introduced by the Lisbon Treaty was the integration of the former third pillar (Police and judicial cooperation in criminal matters, PJCCM) provisions into the core policy areas (Area of freedom, security and justice).[2] As part of the former PJCCM now Art.87-89 Treaty on the functioning of the European Union (TFEU) defines the specific rules for “police cooperation”. According to TFEU it became the Union’s competence to “establish police cooperation involving all the Member States’ competent authorities.”[3] The TFEU also enhanced the role of Europol and Eurojust in cross-border police cooperation.[4] On the ground of the basic provisions of the TFEU the European Council adopted the so-called Stockholm Programme[5] for the work in the area of freedom, security and justice for the period 2010-14. Generally the Stockholm Programme calls for the strengthening of a “common culture” between the member states law enforcement authorities[6] and expressis verbis encourages the EU institutions to use all the newly available tools in order to enhance police cooperation.[7]

The above developments can be regarded as an unambiguous authorisation for the reconsideration of all criminal law related regulation including the currently effective Directive 2008/99/EC of the European Parliament and of the Council on the protection of the environment through criminal law[8] (2008 directive) in light of the new legal environment. The reconsideration is particularly relevant in so far as the 2008 directive does not lay down measures concerning the procedural part of criminal law nor does it touch upon the powers of police, prosecutors or judges. Moreover it does not contain provisions on the role of Europol/Eurojust in the fight against environmental crime. However, in accordance with Europol’s envisaged role by the Stockholm Programme,[9] a former proposal made by the Danish government back in 2000[10] intended to call in Europol into the work.[11] It should also be emphasised that the investigation of environmental crime has its own difficulties.[12] These difficulties multiply when the offence has cross-border aspect and the cooperation of more than one member states’ law enforcement authority is required. The available legal tools in that regard are also emerging within the EU that needs to be analysed. The creation of the so-called “EnviCrimeNet” 2011[13] is promising, however it a purely informal cooperation.

To summarize, it is visible that the Lisbon Treaty created a brand new legal environment inter alia for EU cross-border police cooperation. In light of this development the current directive for environmental crime needs to be reassessed. The problem was also recognised by the Action Plan Implementing the Stockholm Programme[14] when it called for a “legislative proposals supplementing Directive 2008/99/EC on the protection of environment through criminal law and Directive 2009/123/EC on ship-source pollution.”[15]


[1] http://ec.europa.eu/environment/legal/crime/index.htm (last accessed: 24/3/13)

[2] Title V TFEU

[3] Art. 87(1) TFEU

[4] Art. 85, 88 TFEU

[5] OJ C 115/1 of 4.5.2010

[6] ibid.

[7] “All opportunities offered by the Lisbon Treaty to strengthen the European area of freedom, security and justice for the benefit of the citizens of the Union should be used by the Union institutions.” ibid.

[8] OJ L 328/28 of 6.12.2008

[9] “Europol should become a hub for information exchange between the law enforcement authorities of the Member States, a service provider and a platform for law enforcement services” 4.3.1. Stockholm Programme

[10] Initiative of the Kingdom of Denmark with a view to adopting a Council framework Decision on

combating serious environmental crime (2000/C 39/05) OJ C 39/4 of 11.2.2000

[11] Art. 9 and 10 ibid.

[12] such as the detection of the crime, the setting up of a coordinated investigation, the gathering of evidence and the problem of “missing victims” of environmental crime

[13] http://envicrimenet.com/ (last accessed: 25/3/13)

[14] Delivering an area of freedom, security and justice for Europe’s citizens, Action Plan Implementing the Stockholm Programme Brussels, 20.4.2010 COM(2010) 171 final

[15] page 22 ibid.

11.15 12.45 Research Session 2: Data

Location: 1004/5 Old College

Chair: Keith Sturrock

  1. Maria Tzanou

“Outside Bad, Inside Good” The EU’s PNR and TFTP schemes

2. Fiona Grant

Rights and personal data, and the free movement of such data for security purposes

3. Mo Egan

Seeing is believing: police practitioners as an epistemic community

1. ‘Outside Bad, Inside Good’ The EU’s PNR and TFTP schemes

Dr. Maria Tzanou

Lecturer in EU law

Edge Hill University, UK.

E-mail address: Maria.Tzanou@edgehill.ac.uk

The EU-US PNR and Terrorist Financing Tracking Program (TFTP) agreements have been among the most controversial counter-terrorist measures that the EU had to agree with the US after the 9/11 terrorist attacks. Both agreements have been heavily criticized for their fundamental rights’ implications, in particular on the rights to privacy and data protection.

Notwithstanding this, the EU has put forward its plans to develop its own PNR and Terrorist Finance Tracking System (TFTS). The present contribution will aim to examine the rationale of these proposals in the context of the EU’s Internal Security Strategy. What is the necessity of such systems when their effectiveness is far from proven? How much will they cost to the EU and its Member States in the times of the financial crisis? Most importantly, why is the EU aspiring to internalize external security needs? Are there the same reasons for the development of an EU PNR and an EU TFTS? Finally what about the implications of such systems on the rights to privacy and data protection? Is it fine now that we are talking about the processing of the data of others, non-Europeans (including Americans)?

2. Rights and personal data, and the free movement of such data for security purposes

Fiona Grant,

Law Division,

University of Abertay Dundee

E mail: f.grant@abertay.ac.uk

On 25/01/12 the European Commission published proposals for a new legal framework on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The prospective regime has a duality of purpose; to replace the Data Protection Directive 95/46/EC with a general Data Protection Regulation (COM 2012 9) and to supersede Framework Decision 2008/977/JHA for the protection of personal data in the areas of police co-operation and judicial co-operation in criminal matters with a Directive (COM 2012 10). The target date for transposition of both instruments, which are currently being consulted upon, is 2015.

In its resolution on the Stockholm Programme 2010 -14 for an open and secure Europe, the European Parliament called for, inter alia the revision of 2008/977/JHA to ensure compliance with Article 16(1) TFEU which enshrines the international norm, as reprised in Article 8 of the Charter of Fundamental Rights of the EU, that protection of personal data is a fundamental right. When juxtaposed with the agreed Stockholm position that the EU must foresee and regulate the circumstances in which interference by competent public authorities with the exercise of … [data subject] rights is justified it is timeous to consider the innovations the proposed Directive seeks to implement to strengthen citizens’ rights and freedoms and the impact of same on the cross-border exchange of law enforcement information.

As the dialogue between EU actors, civic society and the competent public authorities continues, this paper will assess where the balance between these two competing imperatives currently lies.

3. Seeing is believing: police practitioners as an epistemic community

Mo Egan,

Law Division,

University of Abertay Dundee

E-mail: m.egan@abertay.ac.uk

Domestically, in the UK, the concept of evidence based policing has entered practitioners’ and academics’ vocabulary with relatively little fanfare. There are now many forums focusing on the development of relationships between police practitioners and the academic community.  In several respects, these are bartering systems, with academics keen to gain access to what is a notoriously secretive profession, and practitioners keen to have ‘evidence’ that can be used as leverage within the profession, supporting particular models of policing. However, less attention has been given to the nature and substance of a police practitioner’s knowledge within, and beyond, this field. Building on Reiner’s assertion that “all policing is political, this paper will argue that the police practitioners’ sphere of knowledge has considerable influence on policy and lawmaking beyond domestic criminal justice policy.[1] To support this assertion, this paper will examine to what extent the police practitioner has become an ‘expert’, and whether they have, in effect, become an epistemic community. This community must be located within the developing ‘Area of Freedom, Security and Justice’ where there is continued pressure on EU agencies to shore up the available evidence base for policy development.[2] Indeed, the implementation of the EU Internal Security Strategy constructively demonstrates how such evidence is incorporated within policy development at the EU level. Moreover, as acknowledged by Parkin, many of these EU agencies derive such evidence from member states’ various data repositories. Consequently, domestic organisations/agencies responsible for such data collection can influence EU level policy, making further examination of the interaction of domestic police practitioner as experts in their field important to developing critiques of the EU Internal Security Strategy and its implementation.


[1] Reiner, R. (2000). The Politics of the Police. 3rd Ed. Oxford: Oxford University Press. p49.

[2] Parkin, J. (2012). EU Home Affairs Agencies and the Construction of EU Internal Security Strategy. CEPS Paper in Liberty and Security in Europe. No 53. December.

13.45 15.15 Research Session 3: Secrecy

Location: 1004/5 Old College

Chair: Anne Wilson

1. Matthias Leese

Algorithmic risk profiling: on the increasing invisibility of security

2. Cristina Blasi Casagran

Making sense of the EU internal measures for exchanging information on criminal matters

3. Vigjilenca Abazi (cancelled)

Uncovering Secrecy in the European Union’s Security

1. Algorithmic risk profiling: on the increasing invisibility of security

Matthias Leese, M.A.

Research Associate,

International Centre for Ethics in the Sciences and Humanities (IZEW)

Section Security Ethics,

University of Tuebingen,

Germany

E-mail: matthias.leese@izew.uni-tuebingen.de

As has been argued by several authors, security policies in the post-9/11 context have become increasingly directed towards the future, enacting security via anticipation, prevention, preemption, or simulation (see for instance Amoore and de Goede 2005; Aradau and van Munster 2007; Zedner 2007; Amoore 2011; de Goede 2011; Adey and Anderson 2012). The common denominator of those practices is their reliance on data in order to realize predictive risk assessments. Thus, efforts have been undertaken to gather as much intelligence as possible, leading to the accumulation of “Big Data” in many sectors (Craig and Ludloff 2011). This ongoing practice has for instance become apparent in the EU Justice and Home Affairs (JHA) area, where the Stockholm Programme has set a further focus on an approach for internal security that “requires an integrated approach where security professionals share a common culture, pool information as effectively as possible and have the right technological infrastructure to support them” (European Council 2010, C 115/18).

More recently, the European Commission (COM(2011) 32 final) as well as the Council of the EU (8916/12) have made proposals for a European Passenger Name Record (PNR) Directive, capturing mobility information within the EU jurisdiction and enabling authorities to make “use of the data for analysis and creation of assessment criteria, which can then be used for a pre-arrival and pre-departure assessment of passengers” (European Commission 2011, 4). Thus, based on the digital encoding of the citizen and the creation of “data doubles” (Haggerty and Ericson 2000), the EU strives to tackle issues of crime and terrorism effectively. However, as algorithmic risk assessment is being used to make sense of large amounts of information, “risky” profiles are no longer predefined by the professional knowledge of law enforcement and security practicioners, but come into being inductively via patterns in the data (Hildebrandt 2008). This practice in terms produces non-representational knowledge, as “profiles do not describe reality, but are detected by the aggregation, mining and cleansing of data” (González Fuster, Gutwirth, and Ellyne 2010, 3), possibly leading to discrimination on a rational basis (see Gandy 2010).

However, the exploitation of Big Data for security purposes creates more caveats. My paper argues that with algorithmic risk assessment, security shifts from targeted governance towards autonomous/automated governance. Thus, security moves away from deliberately visible concepts like precaution, anticipation, or simulation, and towards a notion of invisibility as it can be found in Ambient Intelligence setups (de Vries 2010). As Schreurs et al. (2008, 262) note, in existing PNR regimes “information about the profiling practices that were applied was not made public”, leaving the citizens unclear about which information is collected and how it is processed. This practice undermines the principles of transparency and accountability though, which are being emphasized by the Stockholm Programme (European Council 2010, C 115/33). As mechanisms of profiling become black-boxed and hardly traceable, even for experts (Rouvroy 2013) – a major conflict is to be found between ongoing PNR policy developments and the EU’s claim to realize security in a way that is both effective and citizen-friendly.

References

Adey, Peter, and Ben Anderson. 2012. “Anticipating Emergencies: Technologies of Preparedness and the Matter of Security.” Security Dialogue no. 43 (2):99-117.

Amoore, Louise. 2011. “Data Derivatives: On the Emergence of a Security Risk Calculus for Our Times.” Theory, Culture & Society no. 28 (6):24-43.

Amoore, Louise, and Marieke de Goede. 2005. “Governance, Risk and Dataveillance in the War on Terror.” Crime, Law and Social Change no. 43 (2):149-173.

Aradau, Claudia, and Rens van Munster. 2007. “Governing Terrorism Through Risk: Taking Precautions, (un)Knowing the Future.” European Journal of International Relations no. 13 (1):89-115.

Craig, Terence, and Mary E. Ludloff. 2011. Privacy and Big Data. Sebastopol: O’Reilly Media.

de Goede, Marieke. 2011. European Security Culture. Preemption and Precaution in European Security. Inaugural Lecture, 27 May 2011. Amsterdam: University of Amsterdam.

de Vries, Katja. 2010. “Identity, Profiling Algorithms and a World of Ambient Intelligence.” Ethics and Information Technology no. 12 (1):71-85.

European Commission. 2011. COM(2011) 32 final. Proposal for a Directive of the European Parliament and of the Council on the Use of Passenger Name Record Data for the Prevention, Detection, Investigation and Prosecution of Terrorist Offences and Serious Crime. Brussels.

European Council. 2010. The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens. Brussels.

Gandy, Oscar H. 2010. “Engaging Rational Discrimination: Exploring Reasons for Placing Regulatory Constraints on Decision Support Systems.” Ethics and Information Technology no. 12 (1):29-42.

González Fuster, Gloria, Serge Gutwirth, and Erika Ellyne. 2010. Profiling in the European Union: A high-risk Practice. INEX Policy Brief 10 / June 2010, http://www.ceps.eu/ceps/dld/3474/pdf. PRIO.

Haggerty, Kevin D., and Richard V. Ericson. 2000. “The Surveillant Assemblage.” British Journal of Sociology no. 51 (4):605-622.

Hildebrandt, Mireille. 2008. “Defining Profiling: A New Type of Knowledge?” In Profiling the European Citizen. Cross-Disciplinary Perspectives, edited by Mireille Hildebrandt and Serge Gutwirth. Dordrecht/London: Springer Science + Business Media B.V.

Rouvroy, Antoinette. 2013. “The End(s) of Critique: Data-behaviourism vs. Due-process.” In Privacy, Due Process and the Computational Turn. The Philosophy of Law Meets the Philosophy of Technology, edited by Mireille Hildebrandt and Katja de Vries. Milton Park/New York: Routledge.

Schreurs, Wim, Mireille Hildebrandt, Els Kindt, and Michael Vanfleteren. 2008. “Cogitas, Ergo Sum. The Role of Data Protection Law and Non-discrimination Law in Group Profiling in the Private Sector.” In Profiling the European Citizen. Cross-Disciplinary Perspectives, edited by Mireille Hildebrandt and Serge Gutwirth. Dordrecht/London: Springer Science + Business Media B.V.

Zedner, Lucia. 2007. “Pre-crime and post-criminology?” Theoretical Criminology no. 11 (2):261-281.

2. Making sense of the EU internal measures for exchanging information on criminal matters

Cristina Blasi Casagran

Researcher, Department of Law,

European University Institute,

Via dei Roccettini 9,

I-50014 San Domenico di Fiesole,

Italy.

E- mail: cristina.blasi@eui.eu

One of the objectives of the Internal Security Strategy (ISS) adopted by the European Commission in 2010 is to promote the effective coordination and cooperation between law-enforcement and border-management authorities within the European Union. In this respect, prior to the Lisbon Treaty some EU Member States had transposed in their national legal orders a few legislative measures in the field of criminal matters. Their implementation and usage, however, has been controversial – especially after Lisbon.

This study analyses some of legislative measures adopted by Member States fundamentally based on the cooperation by exchanging criminal information. In order to do so, it will first examine the origin, evolution and scope of the EC/EU legislation on the processing of personal data for criminal matters. Second, the paper will study the existing EU instruments used by its Member States to exchange and process personal data for law enforcement purposes. Particularly, procedures of mutual legal assistance (MLA), Swedish Framework Decision and Prüm Decisions, European Criminal Records Information System (ECRIS) and European Investigation Order will be examined. Third, difficulties in the exchange of information between EU Member States for law enforcement purposes will be assessed.

The final section of this examination will look at the increasing involvement of Europol in some of the aforementioned initiatives, focusing on how the agency’s role can contribute in improving the detected flaws, and at the same time, providing a better protection of EU fundamental rights such as the right to data protection.

This paper mainly seeks to identify the difficulties that Member States have experienced in implementing EU data-exchange instruments, followed by the debate on whether an increasing involvement of Europol might solve some of these problems.

3. Uncovering Secrecy in the European Union’s Security

Vigjilenca Abazi (cancelled)

PhD Researcher

Amsterdam Centre for European Law and Governance

Faculty of Law,

University of Amsterdam

E-mail: v.abazi@uva.nl

Secrecy and security are intrinsically related. Secrecy protects the exchange of sensitive information involved in operations of fighting crime and terrorism.

The challenge to address contemporary security threats – internal, external, and increasingly interlinked – has required the European Union (EU) to establish a cooperative approach to security, which in turn has resulted in exchange of a growing amount of European Union Classified Information (EUCI). For example, Europol manages more than 13,000 cases per year and most of its information remains undisclosed, bearing a classification marking. In the interest of security, the EU continually expands its network for exchange of ‘secrets’ seen in many agreements and administrative arrangements both inter-institutional and international.

This paper considers how secrecy in the EU’s security policy is structured and Council’s position at the forefront of this design. In this regard, it lays out the legal framework of classified information in the Area of Freedom, Security and Justice. The focus is particularly on the Council’s EUCI Decision and the Europol Decisions regarding classified information as well as their application in practice derived through interviews with former and current practitioners.

15.45 17.00

Research Session 4: Rights

Location: 1004/5 Old College

Chair: Aaron Winter

1. Dimitris Skleparis

The practices and rationalities of the securitisation of migration and asylum in Greece

2. Maria O’Neill

A first mapping of the potential impact of the justice developments on the Area of Freedom Security and Justice

1. The practices and rationalities of the securitisation of migration and asylum in Greece

Dimitris Skleparis,

PhD candidate,

Queen Mary, University of London

d.p.skleparis@qmul.ac.uk

When it comes to migrant rights, Greece has a negative reputation. The European Court of Human Rights has ruled against the country several times in the past. The unfair deterrence, apprehension and detention practices of the Greek authorities have been extensively documented by various NGOs. However, signs of gradual, but slow, improvement have been noted, particularly in deterrence and apprehension methods, since the RABITs were deployed by FRONTEX at the Greek-Turkish border. The aim of this paper is twofold: by using data from face-to-face semi-structured interviews with security professionals and by applying discourse analysis to a wide range of documents it will first attempt to provide an account of the Greek police and coastguard deterrence, apprehension and detention practices and their evolution from mid-2000s to 2012; second, it will try to identify the rationalities that have guided the respective practices of FRONTEX and the Greek police and coastguard during the same period. This paper argues that although deterrence and apprehension practices of the Greek authorities might have gradually improved through the cooperation with FRONTEX during these years, their rationalities remain unchanged and are reflected in their detention practices and asylum procedures, areas where FRONTEX has no involvement.

2. A first mapping of the potential impact of the justice developments on the Area of Freedom Security and Justice

Maria O’Neill,

Senior Lecturer in Law,

University of Abertay Dundee.

E-mail: m.oneill@abertay.ac.uk

The security aspect of the Area of Freedom, Security and Justice, is recognised as being well developed. The Justice side of the equation is about to undergo a rapid development. The post-Lisbon legal framework of the EU has given the Court of Justice a new oversight role. There has been an upgrade in the legal status of the EU Charter of Fundamental Rights, which should still have an effect on the UK and Poland, despite their opt-out positions as set out in Protocol No. 30.[2] With the road map on procedural rights, to include the new directives on the right to information in criminal proceedings,[3] and the rights to translation and interpretation,[4] and the rights of victims of crimes,[5] there will be serious impacts on how investigations and prosecutions are conducted. In addition there is the anticipated accession of the EU to the ECHR.[6] This paper will attempt to map out the likely effects of these justice developments on the existing cross border policing and prosecution provisions of the EU.


[1] Reiner, R. (2000). The Politics of the Police.3rd Ed. Oxford: Oxford University Press. p49.

[2] Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom.

[3] Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012, on the right to information in criminal proceedings, OJ L 142/1.

[4] Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, OJ L 280, 26/10/2010 p. 1.

[5] Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ L 315/57.

[6] Article 6(2) TEU and Protocol (No. eight) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms.