Examination of Witnesses (Quesitons 100-115)
2 APRIL 2008
Q100 Baroness Ludford: Yes.
Ms in 't Veld: This is the position so far. We do not know where it will go.
Q101 Baroness Ludford: I am not sure what the whole EPP position will be. The Spanish party tends to be pretty hard-line, and some of the Germans.
Ms in 't Veld: Okay, but the spokesperson of the EPP is a German. That is one question. The other question was, what has the Council done so far? Nothing. Here is a little anecdote. When we were talking about the EU/US agreement last year—this was under the Finnish Presidency—the Finnish Minister for Justice, I believe, came to our committee and reported on the PNR file, and she said, "And we have been in close contact with the rapporteur", which was me. I thought, "I have never seen this woman before in my life". They have done nothing. At an informal level we have pretty good contacts with the Commission but, no, we do not get information, as I said, other than through the grapevine. The funny thing is, of course, that one way or another we will get co-decision because if it is carried over into 2009, and it is very likely that it will be because there does not seem to be a great deal of consensus within the Council, then it will be co-decision in any case. The Legal Service of the Council itself has argued that the current legal base is the wrong one, that it should have a kind of double base for two parts of the proposal and one part should be on the basis of transport policies, which is then also co-decision. One way or another we will get co-decision but they do not seem to be fully aware of that yet.
Q102 Baroness Henig: It sounds therefore as if there are going to be interesting times ahead.
Ms in 't Veld: Yes.
Q103 Baroness Henig: Maybe even quite stormy times ahead.
Ms in 't Veld: Yes. At the start I mentioned how many categories of data there were. Basically, any database is accessible by government agencies these days, but this particular one, even if it is only one small subject, has become very much a symbol of the whole debate.
Q104 Baroness Ludford: I would say: with the exception of the UK Government, which in the person of Meg Hillier is indeed on a charm offensive, which to me is rather reminiscent of the Home Secretary at the time, Charles Clarke, under the UK Presidency in the second half of 2005 on the Data Retention Directive.
Ms in 't Veld: That is true, but there have been these work sessions with representatives of the Member States and we said, "Why do you not invite us, maybe the rapporteur, maybe the representatives of the other political groups? As they are work sessions anyway it does not matter". "Ah, no, no, we never do that". Okay.
Q105 Lord Marlesford: My question follows on neatly from that because I gather your committee is visiting England to see the Joint Border Operations Centre near Heathrow.
Ms in 't Veld: Yes, it so seems.
Q106 Lord Marlesford: What do you expect to get out of that? When are you going?
Ms in 't Veld: We have no idea. I read about it in this report yesterday. I do not know, but I am very keen on going. In our committee we had the guy I referred to earlier from Schiphol security who gave us a bit of background on how these things work in practice, and I imagine what we will see, or what I hope we will see, is indeed how they use the data.
Q107 Lord Marlesford: But there has not been a joined-up invitation yet. It has come via us, has it?
Ms in 't Veld: Yes. When we met with Ms Hillier we said, "Oh, yes, that would be a really good idea", but there has not been a formal invitation. I am sure that everybody will be very happy to go.
Baroness Ludford: I met the Director of European and International Affairs, Christophe Prince, at the Border and Immigration Agency, who was in my office this morning and he said that and I said, "Yes, when we have the invitation", and he took on board the fact that we had not actually had an invitation.
Q108 Chairman: We got an invitation direct from the horse's mouth, as it were. I call it that politely. She is, incidentally, an extremely impressive lady, we thought.
Ms in 't Veld: And very nice too.
Q109 Chairman: Yes. They do not always go together but we were very impressed with her. I wonder if any of my colleagues have any other questions they would like to ask as a follow-up to this. No? Sophie, is there anything more you would like to add?
Ms in 't Veld: Yes, there are three small points that I would like to add. One is on the API that I mentioned earlier, which is the basic information which is used for identifying people. There is a European directive on that as well which has been implemented so far by five Member States, or there may be six by today, but the implementation rate is very low. You would think that if it is all so urgent for security purposes they would make bigger haste with this. Secondly, again on the effectiveness, I would like to remind everybody that in all the high profile cases of terrorist attacks the information necessary was available. Just last week there was a report on how the Dutch Intelligence Service had handled the case of the murder of Theo van Gogh. It turned out that they had everything they needed. They could have prevented it and they did not because their risk analysis was wrong because they did not share information because of bureaucratic cock-ups—because, because, because. Take 9/11—they were already watching these people. Madrid—they had the information on who these individuals were but it turned out that the countries were not exchanging information, so it is not as if the problem has always been that there was insufficient information or that they did not have sufficient powers. It is also how you use those powers and that brings me back to the report on the terrorist watch list and the way the FBI manages it. Those are really key issues and it is not about criticising the FBI, but if we are collecting personal data of people and saying that they will be used for greater security but then we see that our agencies are still not working together, still not exchanging information, then the accuracy of data and watch lists leaves room for improvement, let me put it that way. Those questions are also key.
Q110 Lord Mawson: I have spent many years on a housing estate and one watched these endless systems passing through, which were massively ineffective, and generally I found that when you wanted information it was about talking to one or two of the right people whom you got to know as people. One wonders whether with many of these large systems part of the problem is that people are relying on systems, processes and structures rather than trusting people and relationships and so you end up in these sorts of difficulties.
Ms in 't Veld: Yes. The trend is that government agencies or public authorities do not set up new databases. What they do is get access to databases which have been created for commercial purposes, whether it is airline companies or Google or your insurance company or your telecoms provider or your internet provider, you name it. Of course, they do not create databases for the purposes of law enforcement and security, so for them the accuracy of certain data is not particularly relevant. Many mistakes are made when the data are fed into the system. For example, when we were talking about the Data Retention Directive somebody from a telecoms provider said, "All we need are the data of a person to be able to send that person a bill", so whether his or her name is actually the name in his or her passport, whether the street address is the right one, they do not really care as long as they can find the person and they pay the bill. Many people will get a telephone subscription, for example, and give an email address or a credit card number or whatever. Two years down the road they have changed their email address and they have got a different credit card but they have never bothered to change the information because it was not relevant, so all these databases are not terribly reliable.
Q111 Lord Dear: Just as a matter of interest, all our terrorists were home-grown and born and bred third generation in our own country. They may never have moved out.
Ms in 't Veld: Exactly.
Q112 Lord Dear: So looking at travel for them was pretty fruitless.
Ms in 't Veld: Yes, and terrorists these days are very smart. Well, fortunately, they are not that smart. I have been doing a bit of reading on failed and prevented terrorist attacks and in many cases they are incredibly stupid, fortunately, but, as I have said, it only takes one who succeeds, and they are finding their way around things. For example, they will meet in a place far away from the city where their telephones cannot be traced because there is no network. They are probably not going to travel by plane. They are not going to send their money via international bank transfer. They will make their phone calls from a phone booth. Okay, you do not go completely undetected but you can stay below the radar. I have one last point, which is a bit of a technicality, going back to data protection. The data protection systems that we have are completely inadequate, never mind the fact that the Framework Decision has not been adopted yet, but there is another interesting thing. If you look at these minutes (which we are not supposed to have) of the meeting in early February on the first working session and exchange of views between the Member States' representatives, it is interesting what they say about data protection. They say, "There is a small problem because the current Data Protection Directive", which applies to the First Pillar, ie, to businesses, "would cover the collection of PNR data by the carriers". If and when the Framework Decision on data protection in the Third Pillar is adopted that would cover the use and exchange between Member States of those personal data. However, the transfer of data from the carriers to the government agencies is not covered by any data protection arrangement, and it says in the minutes, "but we will find ad hoc solutions to that". If you listen to Frattini and all the other advocates of these measures they always say, "But we need to find the right balance between security and privacy". It is a non-statement; it is completely meaningless. If you then look at what they say to each other when they believe nobody is watching it is very frightening, I think.
Baroness Ludford: I think you are going to meet Peter Hustinx, who is the European Data Protection Supervisor. He said something I thought was very interesting. He said that the normal rule of law—I am paraphrasing his opinion on this proposal from memory—is that you apply criminal justice to someone on the basis of that person's own behaviour, whereas the essence of these data collection systems which are going to partly be used for profiling and data mining is that you are doing something to someone on the basis of other people's behaviour because the behavioural profile that you are then going to apply to pick people out is based on other people's behaviour. It is slightly philosophical; I was not sure it was a legal point, but you are undermining the rule of law, which is that only a person's own behaviour gets them in trouble. Also, in the Framework Decision proposal itself, again from memory, I think it says that PNR data cannot be the basis for enforcement action. I would invite you if I may to try and test what "enforcement action" means. If it is used for secondary screening, if it is going to become a flag in a database on someone, is that enforcement action? What exactly do the terms mean? You do get big legal problems about what happens to people on the basis of being picked out as a result of profiling and then what happens to them compared to, if you like, the strict rule of law.
Chairman: It has just been pointed out to me that the document does say that passenger information units and the competent authorities "shall not take any enforcement action solely on the basis of automated processing of PNR data".
Q113 Baroness Ludford: Again, what does "solely" mean?
Ms in 't Veld: In this respect I was quite shocked to read in the report of your meeting with Ms Hillier, " ... we have arrested and prosecuted drug traffickers on the basis of their travel patterns and their travel history, not on the fact that their name has appeared on our watch list ... ". I think, again, that if you decide to introduce systems like this there need to be watertight legal safeguards for civil rights and there are not.
Q114 Chairman: We are most grateful. We have gone through all our questions. You have given us very full answers. You have applied your personal opinions liberally into them, for which we are particularly grateful and which is why we wanted to talk to you, and this will help us enormously in producing a report which we shall be agreeing by the end of this month and producing it, hopefully, by the end of May.
Ms in 't Veld: I am looking forward to it.
Q115 Chairman: Thank you very much for coming.
Ms in 't Veld: Thank you for the invitation.
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