Examination of Witnesses (Quesitons 80-99)
2 APRIL 2008
Q80 Lord Dear: Could I move on, because this is an allied point about Schengen and we all understand how that works, of course? There is another suggestion that the data should not only be across the Schengen borders into Schengen but movements between Schengen states and indeed even within an individual state. I guess I know what you are going to say but I have to pose the question to you: is this (a) a tenable position and (b) an achievable position, particularly inside an individual country, say, Belgium.
Ms in 't Veld: If governments decide that is what they want to do then it will happen, but fortunately public opinion is gradually waking up to these issues and asking the question, "Are we not giving up too much of our freedom for a purpose that is not clear?". I do not think it is going to come that far. I hope it is not going to come that far.
Q81 Lord Dear: Not as far as individual states?
Ms in 't Veld: No.
Q82 Lord Dear: But movement between Schengen states?
Ms in 't Veld: Yes.
Q83 Lord Dear: It would fly in the face of Schengen by doing that.
Ms in 't Veld: The thing is, with all the measures that we have taken, and again, when we are talking about the security measures, there is always somebody who will get up and say, "But we have to fight terrorists". First of all, the data which are being collected are being used for all sorts of purposes. For example, the Australians have a system whereby they use the data to screen people who want to adopt a child. They screen people on HIV. That has got nothing to do with terrorism. People have this illusion that the massive collection of data in itself is going to bring greater security, so public opinion has been very tolerant to governments and very often governments themselves do not understand very well how it works but they think the collection of data might come in handy at some point. I think a real smart terrorist will always find a hole. The holes in these schemes are so obvious from the very start, starting with the exceptions which are already created in the proposal on EU PNR. It reminds me of the other bit of legislation that was passed on data retention whereby, even before the legislation had been adopted, there were websites which explained to people how you could circumvent the measures. I really think we should at some point have the courage to take a step back and say, "Are we creating real security or fake security?". When we are talking about terrorism, yes, there are people out there who have very bad intentions and it only takes one, so if we take security measures they should be real security measures and not fake security measures.
Q84 Chairman: Let me get clear in my mind your attitude to all this and let me put it in a different context. In certain counties in the UK, maybe most counties, I do not know, the police on motorways or dual carriageways will put a van with a device that scans all number plates and a mile or two miles down the road they will have a car or somebody on a bike, and if a number plate comes past which denotes somebody that the police might be interested in, and I am talking about a national crime now, or if it is a stolen car, they will tell whoever it is down the road and they will stop and question whoever it is. Is it your view that that type of police surveillance is wrong and unduly intrusive?
Ms in 't Veld: It is interesting because in Germany they had a similar scheme which was just slammed down by the German Constitutional Court. There is a pilot scheme going on in the Netherlands. There is some debate about it in Parliament. I do not think people are terribly aware of it. If you ask me, yes, I think it is wrong. Why should you monitor every single person? If they have cameras taking pictures of people who are speeding and then at the end of the road they are pulled over and they have to pay their fines or their car is confiscated, fine, but why would you have surveillance of every single person on the road?
Q85 Chairman: But you have surveillance in terms of speeding with everybody who goes past a camera.
Ms in 't Veld: Yes, but then you pay your fine and that is it, but without a clear purpose ---? They have these campaigns where they go out and they are catching people who are speeding but that is a very clear purpose and it is a one-off.
Lord Dear: Could I ask another question?
Chairman: Lord Dear has a lifetime of experience in police work.
Q86 Lord Dear: The same system is in a good many police patrol cars. You do not have to put a camera by the side of the road. A lot of police patrol vehicles have got the cameras themselves because they drive down the motorway, the camera is looking at all the number plates and it will also tell whether the vehicle is insured or not, because now by law, as in most countries, you have to have the vehicle insured against third party risks, and you can tell immediately on a national database, because all the insurance companies now pull the information, whether that vehicle is insured or not, so you are checking everybody against a road traffic offence, which is insurance, serious but not a crime in the accepted sense. You are monitoring everyone for everything but you only stop those where you have pretty well 100% certainty that there is an offence committed. It is not random stopping which would have been the case before, "Can I see your licence?". You only stop the ones who you know pretty certainly have not got one or are involved in crime or it is a stolen car, so the certainty is only on the stop. I wonder if that jars with your philosophy.
Ms in 't Veld: Again, everything hinges on the purpose. If they set out to find people who have not paid their insurance --- incidentally, I think it is very important that the public are aware that these things are happening because very often they do not know. Another thing is that, when you are talking about databases, there is no database with 100% accuracy, because in the same pilot scheme that we had in the Netherlands, whereby all licence plates were photographed, there was a lady who got a speeding ticket or something, and she was very surprised when she got the bill at home because she said, "I was 150 kilometres away from that spot at that particular day and I had my car with me". It turned out that somebody had fake licence plates, but in the end for her it was an incredible hassle to prove that she was not on the spot, and that is something which is creeping in. Whereas before the burden of proof was on the state or on the authorities to demonstrate that there was a very good reason to investigate somebody, now it is the other way round. People have to explain why they are not guilty. It has not come to the point where that is the situation in court but certainly when you are talking about PNR that is the situation. It is happening to me. Every time I go to the United States they take me out of the queue, I get a stamp on my boarding pass, I am entitled to secondary screening. They ask me all sorts of questions. Last time I was there I had my passport and something that looks like a passport but actually is not. It is some document that is provided by the European Parliament which looks fancy but is completely worthless. The guy was very suspicious, "What is this? Why do you have two passports?". I said, "It is not really a passport". "Well, it looks very suspicious to me. What is it?". I said, "It is from the European Parliament". "What's the European Parliament?". Why do I have to demonstrate that I am innocent? Of course, there is always a grey area because even before the time of electronic databases people would be taken out of the queue and pulled in for questioning simply on the basis of the personal assessment of the border guards.
Q87 Lord Marlesford: You have mentioned profiling in a rather adverse way. If you will agree a basic simplified premise that the object of all this stuff is to catch the bad guys and the subsidiary point is to cause minimum hassle to the good guys, that presumably must mean that you profile. If you take an easy example, the customs in any country, red channel, green channel, on the whole when they are looking at people in the green channel they are profiling in all sorts of ways—appearance and all the rest of it—as to who they will pull out and look at. Are you opposed to profiling as a concept or just some ways in which it is used? What is your worry about profiling?
Ms in 't Veld: First of all, it is not very effective. As I said, there is always a degree of profiling even just in the head of the border guards. They have their instincts and they will look at you and say, "Hmm", but it is not very effective. Again, this is not something that I invent. All this information can be found in the Department of Homeland Security, for example, which I think is a reliable source. They do an annual report on profiling and Congress had a session about it. What they do is they use the same method as marketeers. They say if you are driving a Volvo and you spend your summer holidays with ClubMed then you are also very likely to have dinner at so-and-so restaurant. If they have, say, a 5% match they are happy, but that is not good enough for security purposes. If you look at the effectiveness of the terrorist watch list, for example, there are, I think, close to a million people on the US terrorist watch list. Those people are not all potential terrorists. As a matter of fact, most of them are not. There are many mistakes, there are many duplications. I just referred to this report by the Department of Justice on how the FBI is managing these watch lists. There are so many mistakes that they are just not reliable. Again, the Government Accountability Office found that the customs and border protection is so busy screening those people on the watch list that real wanted criminals manage to get into the country unseen. As an instrument it is not precise enough. It is just not good enough.
Q88 Lord Mawson: Do you know whether the profiling of passengers under the Framework Decision would raise constitutional concerns in any Member States?
Ms in 't Veld: I know that there are constitutional objections in Germany but I think that is more to do with things like storage periods and purpose than profiling itself, although it may well be that it is also the profiling. I do not know about other countries.
Q89 Lord Mawson: The UK believes that sensitive personal data are useful and would like the processing of sensitive personal data to be allowed under the Framework Decision, subject to specific data protection safeguards. What is your view? What safeguards do you think would be needed?
Ms in 't Veld: There are hardly any safeguards at the moment. Again, if you are looking for, let us say, a known suspect; you have a concrete investigation. If you follow all the right procedures or you have a court order or whatever, as policemen, for example, you have to demonstrate that there is reason to believe that this person has done something. Okay; then you have a reason for investigation and in that case, yes, the authorities should get access to information and if necessary also to sensitive information. Should these data be collected systematically? No. That is the other thing. Any security measure that we take has to be accompanied by a strengthening of citizens' rights. In the hearing you had with Minister Hillier she says that there is a data protection framework in place. There is not. The Council is trying to agree on a framework for data protection but it has not yet agreed one and it is a very bad arrangement. It has been criticised heavily by the data protection authorities. There are some Member States which are not happy with it. The European Parliament is not happy with it. I will give you a very clear example of why it is flawed, and it is precisely on the use of sensitive data. There is a paragraph saying, "The use of sensitive data is not allowed—only in exceptional circumstances". Who decides? Who monitors? What exceptional circumstances? That goes to the whole Framework Decision on data protection in the Third Pillar. It leaves it completely open, so instead of strengthening the legal protection of citizens it has weakened it and it gives far too much discretion to the authorities. If we say a certain category of data can be used for certain purposes, then at the same time citizens have to be protected against abuse and mistakes and leaking by the authorities.
Q90 Lord Teverson: I think in a way you have just answered my question. What I am very interested to understand is, who is the champion of this? Is it Frattini? Is it the Commission that wanted this in the first place or is it particular Member States, in your view?
Ms in 't Veld: A bit of everything really. Frattini himself is very keen on this and even if the Commission put forward a proposal as the college I do not think any of his colleagues are really looking into the details. Of course, there are certain Member States who are pushing for this, not least the UK, and the reasoning that was given to us was, "Certain Member States are using this anyway, so it is better if we have it for the whole of Europe".
Q91 Lord Teverson: What Member States other than the UK are particularly interested in this proposal?
Ms in 't Veld: I get the impression that in this case it is mainly the UK and France, although even within Member States it may differ. For example, the German Minister for the Interior, Mr Schäuble, is very keen on any security measure, whereas his colleague at the Ministry of Justice fundamentally disagrees.
Q92 Chairman: Is that a function of the coalition in Germany?
Ms in 't Veld: I think Schauble personally is very much a hawk, if you want, but Germany as a whole has a very strong tradition of civil rights.
Q93 Chairman: You could have fooled me!
Ms in 't Veld: Okay, since the Second World War. Let me rephrase that: they have a very good reason for being very critical when it comes to these things, and, interestingly, so do the United States. They take many measures which have a kind of extraterritorial impact, which would never be accepted by their own citizens.
Q94 Lord Teverson: You mentioned yourself that increasing numbers of third countries are likely to request the provision of PNR and I personally was not aware of that. We are interested in where you think that will go in terms of global collection and processing of PNR. Where is all this going to go? I presume in some ways the EU is quite pivotal to what might happen there. Is there a possibility, because it has been championed by an individual or only one or two states, that it might not get anywhere, or is this going to happen?
Ms in 't Veld: I am an optimist, so --- In a way the standard has already been set by the US. They have simply imposed it on us and push and push and push, because if you look at what they were asking for in 2003 and where we are now there is already considerable widening of the scope. Yes, the EU is pivotal and, of course, if you look at an organisation such as ICAO, for example, they are trying to come up with proposals for a global standard because they want to have influence but they are also a bit worried about the course that this is all taking.
Q95 Lord Teverson: You are in a way saying that this is probably good if we are very clear what it is for and we only use it for what it is for, and if it is effective to do what we say it is going to do.
Ms in 't Veld: Yes, and with the legal safeguards in place.
Q96 Lord Teverson: Yes. What I would be very interested to understand from you is, from your point of view within open societies how do we determine whether this is effective or not? I do not want to get too much back into the American system, but is it possible to show that it is effective or not from the point of view of parliamentary scrutiny, whether it be national or European?
Ms in 't Veld: Let me put it this way. If the people who are proposing this are so convinced that it is useful then I am sure they have all the supporting evidence, I would say, in my limited logic. It is just that they have never produced it and every time you get the same argument, "Oh, no, we cannot tell you that for security purposes".
Q97 Lord Teverson: Is that a valid argument? Can that be an valid argument?
Ms in 't Veld: It is not a valid argument. It is never a valid argument in a democracy. In a democracy if the executive cannot be held to account then we have a serious problem. Of course, you do not have to print it in the newspaper but there are all sorts of mechanisms in any democratic state for controlling the government and even in sensitive security matters. All we have asked for, for example, is facts and figures which would not give away any operational details, "How many bad guys did you catch, how many attacks were prevented and how many false positives were there?". That they should be able to answer without giving away details. We could even accept that they would do it in a closed meeting, but all you get are horror stories by Mr Chertoff which impress his audience, but, sorry, we are legislators. If I put my stamp of approval as a Member of Parliament on the law then I want to be absolutely sure that it has a solid justification, and we just never get any proper evidence. Mr Frattini says, "I believe that it is necessary". If the Government proposes to spend 20 million on infrastructure works, would you say, "I accept it as a Member of Parliament" if they say, "We believe it is useful"?
Q98 Lord Teverson: Well, they did build the Dome in East London, so I am afraid we failed.
Ms in 't Veld: The other thing is that we all seem to believe that these systems are infallible. We seem to have blind faith both in government and in technology, which is rubbish. For example, ask Symantec, which is a company which makes security protection systems for computers, for the figures on how that security works in practice. The worst offenders, when it comes to leaking personal data from databases, are public authorities and the education sector is the worst with 30% of their databases. On average it was 25% but I have heard that it is just going up. We all know the stories. I think you had your CD Roms and we had our USB sticks there in all these companies or sites of public authorities which all of a sudden turn out to be accessible to everybody or can be hacked. There is no 100% security. As a matter of fact they are very sloppy, so that would be another thing where I would need better guarantees.
Chairman: I think you have made it very clear what your personal attitude toward this is but let us just now turn to the wider aspect of the politics of the Parliament as a whole.
Baroness Henig: Obviously, if the Treaty of Lisbon were in force at this point in time this measure would need co-decision and I wondered what steps the Council has thus far taken to involve the European Parliament more closely, because it is likely that as and when serious moves are made on this there will be a system of co-decision in place.
Q99 Chairman: As well as, if I might say, your assessment of how the Parliament will respond to these proposals. You have made your personal position very clear.
Ms in 't Veld: To start with the last question, of course people will express their views. There is a wide range of different tones of voice but all in all, as I just told you, the resolution that has been passed by the European Parliament last year on the EU/US agreement is crystal clear and this was supported with near unanimity in the European Parliament. So far we have not started to work on the text of the EU proposals but what I hear from all the political groups so far is that they all share the same scepticism, the same doubts; they all have the same questions. The spokesperson of the EPP group, which is the Conservative Christian Democrat Group, which always tends to be a bit more law-and-order, is saying the same thing. They say, "We want evidence first and we are not getting it". The more the Commission is refusing to give it the more they dig their heels in. I do not know if you share this assessment.
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