By Maia Bishop
In the age of newsflash-notifications, being constantly reminded of the terrorist threat is a fact of being alive in contemporary society. This is also true for politicians, who naturally feel a responsibility to calm and protect fearful citizens from being massacred while carrying out their everyday lives. Recent attacks have thus resulted in many European states drastically expanding hidden surveillance of citizens suspected of terrorist crimes. In the wake of fear, history has proven that the rule of law often takes a backseat, and the carefully placed boundaries between individuals and the state that were established after the Second World War have been eroded at a rather alarming rate. This is largely being enabled, and possibly ignored, by states declaring a state of emergency to enable secret coercive measures. Measures that previously would have been considered unlawful infringements on both international treaties and domestic law.
It would be naïve not to acknowledge that this practice can be a crucial and life-saving response to major security threats when there is reason to believe that there simply is not enough time to properly assess the situation or wait for a court’s ruling, and the costs of doing so are likely to be profoundly high. However, one of the more concerning aspects of this development is how temporary legislation vindicated by counter-terrorism efforts have proved a tendency to become embedded, permanent features in ordinary law. The weakening of boundaries for state surveillance should especially raise concern in light of the widespread rise of populist parties and changing attitudes towards authoritarian ideologies throughout Europe – in particular the very real possibility of these groups accessing information and extensive powers without proper checks and balances staying in place. Overlooking this threat to prioritize a perceived sense of safety and righteousness is a predictable, yet unfortunate, response.
A flagrant example of how exceptional measures are gradually becoming the new normal is France’s state of emergency. The emergency laws, first introduced in 1955 as a response to the Algerian War of Independence, greatly expand French authorities mandate to infringe on civil liberties prior to court approval and based on lesser grounds. To put it in perspective the state of emergency allowed more than 4 000 warrantless police raids in homes and mosques after the Paris attacks, many of them based on anonymous tips and unconfirmed intelligence reports. According to reporting by Le Monde in 2017, only 23 cases led to terror related accusations compared to the more than 600 people that were taken into custody. After expiring on November 1st of 2017, many of the extraordinary powers previously associated with a state of emergency had been implemented into ordinary law through President Macron’s new terrorism bill – cementing extensive powers for the state to detain and raid the homes of suspects, for daytime patrols by military and for expanded collection of domestic intelligence. The bill is also described as pushing the borders for freedom of movement in the EU, running the risk of inspiring countries like Hungary to follow lead. The state of emergency lasted for two years and was extended six times throughout consistent accusations of being excessive and disproportionate by five UN special rapporteurs and several human rights organizations such as Human Rights Watch and Amnesty International.
The extensive expansion of surveillance in European countries has led to reactions for several years, perhaps most notably through several high-profile cases such as Digital Rights Ireland concerning the Data Retention Directive (2006/24/EC) which entailed an obligation for providers to store conversations in case a user would be suspected of a crime. The directive was declared invalid by the Court of Justice of the European Union due to an extensive possibility for states to implement the directive in a way which would be an unlawful infringement on the right to free speech and privacy. Another example is Klass v. Germany, where the German government’s signals intelligence (a practice that entails collecting data through electronic signals) was declared lawful by the European Court of Human Rights even though it did not need a court’s approval before being carried out. One crucial aspect of justifying the limitations of free speech through counter-terrorist legislation is being able to prove that the legislation helps prevent terrorist attacks. In many cases this might seem like stating the obvious, but it is certainly fair to question whether expansive surveillance and criminalization are able to successfully serve this purpose. As scholars have pointed out, surveilling people in a terrorist’s private sphere may in fact increase the number of terrorist acts being carried out by deterring people close to the would-be terrorist from coming forward out of fear of being suspected of a crime themselves.
Even though hidden surveillance carried out by the government clearly counts as a (lawful or unlawful) limitation of the right to free speech and the right to privacy stated in the European Convention on the Human Rights and Freedoms as well as the EU-Charter, it is not uncommon to claim that those who have nothing to hide have nothing to fear. This argument constitutes a fundamental misunderstanding of the scope and purpose of free speech and ducks a pressing discussion on what price we are willing to pay to feel safer. As the General Secretary of the Swedish Bar Association, Anne Ramberg, put it, democracy and free speech are jeopardized as soon as citizens are aware that they are being watched by authorities and therefore adjust private topics or conversations accordingly. To summarize, counter-terrorism legislation is almost never as easy to justify as simply condemning the acts we hope it may help prevent. To promote sustainable counter-terrorism legislation, it is crucial to accept and address the innate conflict between government surveillance and free speech while reminding ourselves of the detrimental effect surveillance has historically meant for democracy – especially for minorities and those in opposition to the ruling party.
By Maia Bishop