EUROPOL'S ANALYSIS REGISTERS TO CONTAIN DATA ON RACE, POLITICAL OPINION AND SEXUAL BEHAVIOUR
Europol shall be allowed to store and process comprehensive information on features such as the race, sexual behaviour, and political views of persons not suspected of any crime. This follows from a draft document on implementing rules for Europol's so-called analysis registers (AR) made available to the cl. Moreover, the rules further extend the already far-reaching scope of the ARs to persons not named in the convention, whenever their registration "could be of interest for a particular analysis".
The purpose with Europol's ARs is to support criminal investigations through the collection and computerised processing of data (see FECL No.32: "Justice and Home Affairs Council in Brussels"; No.33: "The 'architecure' of Europol's information system"). The data may be used for "police purposes". This comprises the prevention, and prosecution of offences, as well as the maintenance of public order.
As provided by the Convention, a distinction is made between "strategic" and "tactical" analyses. While the first are carried out for the general assessment of crime-related developments, the latter are to serve operational purposes in specific crime cases.
Article 10 of the Europol Convention already provides for extensive registration of data on non-suspects such as possible future victims and witnesses, "contacts", and "persons who can provide information on the criminal offences under consideration". Instead of setting some clearly defined limits to the interpretation of article 10 as one might have expected, the implementing rules amount to a blank cheque for unrestrained data-hunting by the Europolice. Indeed, article 3 of the implementing rules not only allows the collection and use of data concerning the categories of persons named in the Convention, but also of "other persons who are not mentioned there [Article 10.1 of the Convention], but whose registration could be of interest for a specific analysis".
Article 4 of the internal rules specifies the type of personal data that may be stored in ARs. Besides the particulars they include items such as other "general" personal data, objective unchanging physical features, place of residence, phone number, firms or places of work, and ... "other indications of use for identification that are not expressly named in this article".
The sexual behaviour and political views of future victims
Article 4.3 allows the collection of "special personal data" on:
racial origin
political views
religious and other convictions
indications on health
indications on sexual behaviour.
Article 5 names the non-person related data that may be registered. They include offences, offences for which cautions have been issued, means used for committing offences, the degree of danger that the persons involved pose, suspicion of "involvement in a criminal organisation", and many more. However, to make sure that no category of data is missing on the list, Art. 5.9 provides for the registration of "other data without relation to a person that are not expressly mentioned but that could prove of interest for the purpose of the analysis".
Article 6 specifies that personal data may be collected only for the prevention of a concrete threat or the prosecution of a specific offence. This (very elastic) restriction shall apply "particularly" for information named in article 4.3 (race, political opinion, etc). Data of this type shall be stored only when they are "absolutely necessary" for the analysis concerned and only when they complement other personal data in the same register. The selection of a particular group of persons on the mere grounds of these "special personal data" is prohibited (Art. 6.1).
The wording of article 6.2 is characteristic of the spirit of the implementing rules as a whole: It first states that only "precise data" [i.e. verified data] may be stored. But the sentence ends: "... as well as data needed for the purpose of the analysis" [i.e. non-verified data!].
Data in the ARs must be distinguishable according to various criteria: information based on facts must be made distinguishable from information based on opinions or personal assessments (soft data). The reliability of sources must be defined by the person supplying information. Data are classified according to:
their sensitivity: "secret", "confidential", "of general interest". Data are secret whenever their content and subject represent a threat to fundamental interests of Europol or a member state. All the data in tactical registers are confidential, as well as data in strategic registers, "whenever this seems recommendable with a view to the surrounding circumstances".
their quality: "very reliable", "relatively reliable", "not very reliable".
their state: "active" or "passive".
A register is "active" from the moment its setting up has been decided and as long as an analysis is being conducted. It becomes "passive" when the analysis operation has come to an end or when the reasons for creating it have changed and it no longer seems "advisable" to continue a specific analysis. In this latter case, the register can however be re-activated if "sufficient grounds" arise (Article 9). The wording of the article suggests, that no data are definitely deleted.
Article 10.1 and 2 specifies the proceedings in defining the persons allowed to participate in analyses of various sensitivity. In secret analyses, only persons designated by the director of Euro-pol may participate. In confidential analyses, the person charged by the director with surveying the analysis designates the participants.
After the successful conclusion of an operational analysis, the data stored in the AR are transferred to Europol's Information System. An exception is made only for "special personal data" (Art. 4.3) that may be processed only for the purpose of analysis.
The internal rules further contain provisions specifying member states' access to "passive" registers, physical measures for the protection of the computer sites, and technical access controls.
Source: Entwurf von Durchführungsbestimmungen für die Arbeitsdateien zu Analysezwecken, European Union, The Council, Brussels, 24.7.95, 9205/95, limite (All quotations from the documents are our translations from the German text). [See also: Europol on drift, by Lode Van Outrive, FECL No.37.](/artikel/3708/)Comment
The draft implementing rules are outrageous in their present shape, but they might become worse later. Indeed, article 15 of the implementing rules says only that any change of the internal rules must be decided unanimously by the Management Board. It does not follow from the document whether such a decision of the Management Board requires the approval of the JHA-Council or not.
Be that as it may, the implementing rules are a new disquieting example of the risk inherent in vague "sceleton" laws such as the Europol Convention. They are fleshed out with their real content afterwards - not by the legislative bodies, but by the executive bodies making their own laws via internal regulations (see FECL No.34: "Accountability: a prerequisite for a legitimate and effective Europol").
In the present case, however, national parliaments theoretically still have a chance to thwart the plans of their executive bodies - by refusing to ratify the Convention.
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