My Television Interviews on Terrorism Topics Monday 23rd July 2018

IS flag

I will be on BBC Northwest Tonight at 6.30pm, Monday 23rd July 2018 to discuss issues around the 15 year old Blackburn boy who was convicted of terrorism offences in 2015 and his wanting to have anonymity following his release from prison.

national action logo1System Resistance Network

 

 

 

 

 

I will be on ITV News at 6.30pm and 10pm, Monday 23rd July 2018 to discuss the threat and rise of the far-right in the UK in particular the neo-Nazi groups like National Action and the newest group that has morphed out National Action, System Resistance Network.

BBC_North_West_Tonight_titlesITV News logo

 

 

Here are the links:

BBC Northwest Tonight

ITV News

Post Brexit will it be the UK or the EU’s security that will be the weaker?

barnier

In June 2018 Brexit negotiations were seeming to make slow progress and at an address to the European Union Agency for Fundamental Rights the EU’s chief Brexit negotiator, Michel Barnier threw a cat among the pigeons  by stating post Brexit the UK will be locked out of the EU’s policing and security databases, lose access to the European Arrest Warrant (EAW) and no longer have a role in managing agencies such as Europol and Eurojust. Barnier added that security cooperation is based on trust, a trust that is founded on an ecosystem and that cooperation between the UK and EU on crime and security would be conditional on the UK remaining subject to the European Court of Human Rights. In relation to the latter, Barnier should have no concerns as there are no moves in the short term for the UK to leave the Council of Europe and thereby withdraw from the European Convention on Human Rights, a document that in 1953 was written primarily by British lawyers!

If Barnier’s threat come to fruition what the UK will lose includes:

  1. Access to the Prum Treaty on the exchange of DNA profiles;
  2. Access to the second generation of the Schengen Information System (SIS II);
  3. Europol’s other databases related to terrorist and criminal activity;
  4. Use of the EAW.

At the EU Summit in Brussels on the 29th June 2018 the UK’s Prime Minister, Theresa May warned the EU that should the UK be frozen out of cooperation on security and criminal activity related to serious crime this would put not just the UK but citizens in the other 27 EU Member States at risk. This raises the question if the UK is denied access to important databases will it compromise UK security? In essence I do not think it will, but it could slow down progress in investigations into terrorism and serious crime.

map of europe

Firstly I think it is totally wrong of Barnier and his team to even to contemplate having the issue of cooperation related to terrorism and security on Brexit negotiations’ agenda. The key issues in those negotiations should focus on freedom of movement of trade and persons, trade and customs tariffs and so on, not security. Of course by leaving the EU both the UK and the EU should have separate negotiations on issues related to cooperation on terrorism and serious crime, but one where negotiations are carried out with a great desire  to reach an agreement without any politicking that benefits citizens in the whole of Europe, not just those in the EU. There appears to be an arrogance with the EU in thinking of itself as Europe, but there are many European nations that are not in the EU and have no intention of doing so. Of course post Brexit the UK will be come a third country (that is one not in the EU), but please note that also post Brexit the UK will still be a European state! As such intelligence sharing and cooperation between the UK and EU Member States will still be important. Terrorists and criminals to not take into account national state borders when carrying out their activity. Both terrorist acts and serious crime like the trafficking of persons, drugs and firearms have a devastating affect on its victims. In short this is simply about nothing more than keep all European citizens safe be they in or out of the EU.

In saying this the non-EU states of Iceland, Norway, Lichtenstein and Switzerland have limited access to EU terrorism and criminal databases through the Schengen Aquis, so why can’t the UK have the same access? It might be the EU is taking  a hard line stance against the UK because the UK does not want the Court of Justice of the European Union to have any form of governance over UK law. It could also be because post-Lisbon Treaty 2009 no EU Member State has wanted to leave the EU with its many unelected bureaucratic bodies (hence the democratic deficit that has been seen with the EU). As such it can be argued that the likes of Barnier is using Brexit and its hard line stance with the UK as a lesson to other EU Member States should they wish to leave the EU in the future. At the time of writing my recent travels has revealed how widespread is the desire of many citizens in EU Member States for their home state to leave the EU. In part this could be down to how the EU has developed from the European Economic Community based solely on trade to a quasi-federalist state post Treaty of Union and Treaty of Lisbon.

If asked I see the hard line Barnier is adopting would more detrimental to the EU and the citizens in its remaining Member States than the UK. The UK has what is termed a ‘gold standard’ in relation to intelligence gathering and sharing among its security services and the police and it is a model that is constantly developing and improving. GCHQ’s Director, Jeremy Fielding recently came out saying that in 2017 GCHQ and the UK played a critical role in foiling a least four attacks on mainland Europe. Fielding’s statement came out following Barnier’s threats and it is very rare for a security service director or senior police officers to feel the need to come out and get involved in a political issue. The UK’s intelligence model is one that other EU Member States want to emulate. Also the UK is part of the Five Eyes, which is an intelligence sharing agreement between the UK, the US, Canada, Australia and New Zealand and as such currently vital intelligence can be rapidly fed in to the EU systems by the UK, something the EU would lose if Barnier’s threats are realised. The EU should be grateful to the UK as Europol’s former director, Sir Rob Wainwright, who left the post earlier this year, shook up Europol by introducing and improving its intelligence and cooperation structures, all based on the UK’s model. He is currently assisting the UK’s Parliamentary Home Affairs Committee on the status of Brexit negotiations on security and the options available for future policing and security cooperation between the UK and the EU.  In relation to EAW’s, there is a possibility that the UK and the EU can negotiate a similar extradition procedure that is as rapid as the EAW because the use of EAW’s has been a two-way process as just as many EAW’s have been carried out by UK policing agencies on behalf of Member States as the UK has made requests. I am confident that as such the UK and the EU can agree on a form of swift extradition. This is important as many EU Member States’ constitutions prohibit extradition of its citizens to third countries, for example Germany.

While in my opinion it is wrong for the EU to use security and serious crime as a political football I am confident pressure will be put on the EU by the Member States and its security services and policing agencies to maintain close cooperation with the UK. As I said the UK is not leaving Europe, it is leaving the EU and the EU is not Europe. Should the EU maintain a hard line on these issues I think the biggest loser with be the citizens of the remaining 27 member States.

Sputnik logo

I discuss these issues in greater detail in my interview with Radio Sputnik

 

Terrorist Incident in Trebes France

Trebes

In relation to Islamist inspired terrorist attacks it has been relatively quiet in Europe over the past few months but once more France has suffered another tragic attack where it is reported that three people have been killed.

The gunman, who has not been named but is believed to be a Moroccan, has been shot and killed by the French police. The incident started in Carcassone where the gunman hijacked a car killing the passenger and injuring the driver. En route to the supermarket in Trebes he shot a wounded a police officer who was jogging. Reported to be heavily armed, the gunman entered the supermarket in Trebes taking staff and shoppers hostage.

salah abdeslam

It is reported that the gunman had pledged allegiance to Islamic State and demanded the release of Salah Abdeslam who was involved in the November 2015 Paris attacks and who was recently convicted of terrorist offences linked to those attacks. Although more information has yet to be released, it does appear that once more we have witnessed another tragic act of terrorism committed by a person who has been inspired by the Islamist narrative of the group Islamic State rather than acting under direct orders of the group. While Islamic State have lost control of key territory in Syria/Iraq and Libya, this incident reveals how potent the narrative of Islamic State still is in influencing the vulnerable and inspiring people to carry out acts of violence in the group’s name. Their media activities via electronic communications has not decreased and this attack should put us all on notice of the potential threat Islamist groups still pose to Western states’ security.

ACT Campaign

We can all play our part by passing information of activity we think is suspicious to the police and in the UK this is part of the current ACT  Campaign Action Counters Terrorism) where if you are suspicious where you can either call 0800 789 321 or compete an online form.

radio scotland logo

I will be discussing this incident in more detail on BBC Radio Scotland just after 6pm (GMT) today.

Cruz, Florida Shooting and the Far Right: How long before gun control and white supremacist groups are controlled?

Nikolas cuz

Nikola Cruz, a 19 year old, has been charged with the murder of 17 people who it is alleged Cruz shot at Majory Stoneman Douglas High School in Parkland, Florida.
This incident raises two important issues. One relates to US gun control as once more we have witnessed another massacre of innocent people, which from the view of this UK citizen it is incomprehensible as to why the US has not introduced legislation bringing in stricter and tighter conditions over gun ownership and its use. Clearly the influence of the US’ National Rifle Association must be strong on many US politicians, who from my perspective appear to see votes more important than their constituents’ lives. A reliance on the second amendment of the 1791 Bill of Rights that states, ‘A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed’ in 2018 seems a rather outdated constitutional right. Written at a time when the US did not have a standing army, as the US now has one of the world’s most powerful military this right seems to be obsolete. This is not the main focus of this blog, it is a second issue that this murder raises regarding Cruz’s alleged association with the far right, in particular the group Republic of Florida (RoF). If proved it demonstrates how influential these groups are in inspiring individuals to carry out acts of murder and violence in their name be they direct to by that group or not.

republic of florida flag

A white supremacist group, RoF has claimed that Cruz was associated with them. This is an allegation that is currently being investigated and has yet to be confirmed. That said over the last few years globally there has been a rise in murder and violent acts carried by individuals influenced by the far right narrative. This has included the killing of six people at a mosque in Quebec, Canada in January 2017 by Alexandre Bissonnette. In the UK examples include the conviction of a member of the now proscribed group National Action, Zak Davies for attempt murder, Thomas Mair for the murder of UK MP Jo Cox and more recently Darren Osborne for the murder and injury to Muslim worshippers outside a mosque in Finsbury Park, London. In 2017 the US witnessed the killing of Heather Heyer who was protesting against a white supremacist rally in Charlottesville, Virginia where it is alleged that James Field (who allegedly has Nazi sympathies) drove into the protestors killing Heather Heyer and injuring 35 others.

us bill of rights

The question is if other states should follow the UK’s lead and start proscribing certain far right groups as terrorist organisations? In raising this question concerns will be expressed as to how this would be seen as a step limiting certain rights. In Europe these are mainly governed by articles 11, freedom of expression and article 12, freedom of association under the EU’s Charter of Fundamental Rights and Freedoms (articles 10 and 11 respectively under the Council of Europe’s European Convention on Human Rights). In the US these rights come under amendment 1 of the 1791 Bill of Rights. In a democracy it is important that views can be expressed freely and to associate with whoever we want to without fear of retribution from the state. As Sedley LJ said in the UK case Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 733:
‘Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.’
The phrase that is important in this judgement is, ‘…provided it does not tend to provoke violence’. Note this is not to promote violence, just merely to provoke violence, that is merely to inspire someone to carry out violence.

antipodean resistance
It can be argued that the RoF (formed in 2014) promotes violence. Under the RoF’s ten codes, code 3 promotes a willingness to ‘wage battle’ by encouraging its followers to maintain a level of fitness saying, ‘You cannot fight if you are tired and weak’. Code 7 promotes its followers to be part of an organised militia. RoF has contact and associations with other white supremacist groups including Atomwaffen. Atomwaffen openly describes itself as a neo-Nazi group and as seen on their website the group provokes violence in achieving their aims. In Canada a recent study revealed that there are approximately 100 extreme far right groups active in Canada including Soldiers of Odin, the Alt-Right Group Heritage Front, Blood and Honour and based in Quebec, La Meute (translated as ‘Wolf Pack’), who between 1985 to 2014 were responsible for more than 120 violent incidents. In Australia a number of far right groups exist including Aryan Nation, Combat 18, National Democratic Party for Australia, Soldiers of Odin and United Patriots Front. Formed in late 2016 one of the more recent extreme far right groups to emerge in Australia is Antipodean Resistance. Antipodean Resistance is also openly a neo-Nazi group that appears to have based itself on the UK group National Action. The language and imagery used between Antipodean Resistance, National Action and groups like Atomwaffen are identical.
Earlier this week the UK’s Home Secretary, Amber Rudd revealed that she is encouraging internet service providers to use software that blocks Islamist extremist content. While the Islamist narrative is equally as vile as that of the far right, perhaps globally politicians should look at encouraging companies to use software that also blocks far right extremist content. Maybe other states should go further and proscribe those far right groups that are openly provoking violence. In doing so, this would give the police much wider powers and offences in which to deal effectively with the threat far right groups are posing to the security of citizens in many states. If it is later evidenced that Cruz had connections with RoF surely this is also evidence that certain far right groups should be prevented from carrying out their activities that is attractive to the disenchanted in society and, those like Cruz, vulnerable to being drawn towards violent activity. Rightly, if these were Islamist inspired groups, there would be more vociferous calls from politicians and the public for something to be done. It should be the same for far right groups that promote or merely provoke violence too.

My terrorism book cover

I discuss many of these issues in my forthcoming book ‘Terrorism: Law and Policy’ that is being published by Routledge in March 2018.

Osborne Convicted of Terrorist Murder: Time for all extreme far right groups like Britain First to be banned?

METROGRAB:Suspected  Finsbury Park attacker is detained by police and members of the public
Photo credit: Nawaf Atiq/ Facebook
https://www.facebook.com/nawaf.atiq

Darren Osborne has been convicted of murder and the attempted murder of nine others when he drove a van into Muslim worshippers at Finsbury Park in June 2017. Osborne received a life sentence where he will serve a minimum of 43 years in prison. While tried for murder, as it usual with terrorist incidents when persons are killed, the political cause (here extreme far right) was a sentencing factor and the trial judge, Mrs Justice Cheema-Grubb stated that Osborne’s actions was a terrorist attack as he intended to kill.

It is important we recognise the dangers the extreme far right pose to the security and safety of citizens, not just in the UK but globally. Extremism in all its forms from Islamist to extreme far right.

National Action 2

In the UK, while the UK extreme far right group National Acton was proscribed in December 2016 as a terrorist organisation (that was followed the groups morphed after National Action was proscribed, Scottish Dawn and NS131), there are other extreme far right groups whose extremist message is influencing others towards violence carried out in their name. That violence is invariably targeted towards minorities, that for many far right groups does not just focus on race and religion but sexuality and political views.

Jayda Fransen court case

The group Britain First is a prime example of an extreme far right group the UK government should seriously consider proscribing as a terrorist organisation. Currently its leader, Paul Golding, and its deputy leader Jayda Fransen are on trial for allegedly carrying out religiously aggravated harassment. The pair  targeted a person related to a rape trial. This is not the first occasion Golding and Fransen have been arrested and appeared in court. There are many examples  including in December 2017 Fransen appeared at Belfast Magistrates Court for allegedly using anti-Islamic comments. In December 2016 Golding was jailed for eight weeks for breaching  am injunction prohibiting him from entering mosques in Bedfordshire. In November 2016 Fransen was convicted for religious aggravated harassment, receiving a £2,000 fine.

Britain-First-badge

While Britain First’s mission statement does not explicitly state it is anti-Islamic, there is a picture of Golding and Fransen with their supporters with a banner saying ‘Time to fight Islamic terror’. The statement says Britain First’s policies are pro-British, loving ‘our people, our heritage and culture’, defending them no matter what odds the group faces, the question is who is ‘our’? The statement is clear the group is anti-foreigner,. anti-asylum seeker and anti-migrant, adding that Christianity, that the group sees as the bedrock and foundation of Britain’s national life, is under ‘ferocious assault, with Christians facing discrimination and persecution.

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It is perhaps time now for the UK government to proscribe Britain First as their narrative does influence others to believe their skewed and warped ideology. The problem of them being free to release anything they want to say is the group can grasp any legitimacy of its narrative, especially when that legitimacy comes from an unexpected source like the US President. In November 2017 US President, Donald Trump retweeted three of Fransen’s tweets that purported to show actions of Muslims , with those actions being shown to be a false depiction of what Fransen was using them for. Fransen jumped on this using it to legitimise Britain First’s narrative claiming that the US President supports them. This incident caused a bitter row between the UK Prime Minister, Theresa May and Donald Trump. Donald Trump has since said he is prepared to apologise for retweeting Britain First’s tweets, claiming that he had no knowledge of what the group stands for.

Although small in membership numbers, groups like Britain First and National Action do inspire others to carry out violent attacks. This is why they should all be proscribed a it gives the security services and the police wider powers and a wider number of offences to deal with the far right. This is seen in the number of arrests there have been on members of National Action, where even in January 2018 six alleged members of National Action were arrested in the UK. In addition to the wider powers being proscribed organisations reduces the platforms from which to spread their damaging and dangerous narrative with which to inspire those less aware of current affairs or special issues from carrying out acts of violence. Anything that does this has to be a positive move.

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It is important counter-narratives are developed and used against all forms of extremism and this is an important strand of Prevent strategies. While Prevent has had its problems in the past, there is no credible alternative to use at the moment and the strategy does work. We should all work towards the goal of helping those who are vulnerable to being drawn towards terrorism by producing an effective counter-narrative and making as hard as possible for any extremist group to get their message out.

Is EU data protection law hampering terrorism and serious crime investigations?

Irish high court

In February 2018 the Irish High Court will assess if Irish legislation governing the retention and access to telecommunications data is compatible with EU law. This will not be the first time a  case regarding EU data protection law and the retention and access to telecommunications emanated from Ireland. The Irish campaign group Digital Rights Ireland brought a case to the Irish courts that ended up in the EU’s Court of Justice of the European Union (CJEU) where the compatibility of the EU’s Directive 2006/24/EC with EU law protecting privacy rights and protection of personal data was examined. Introduced following the terrorist attacks in Madrid 2004 and London 2005, the 2006 Directive laid down an obligation on publicly available electronic communications services or public communications networks to retain certain data generated or processed by them that would assist in investigating and prosecuting terrorism and serious crime cases.

CJEU

In the case of Digital Rights (2014) the CJEU found the 2006 Directive would  for a number of reasons (reasons underpinned by the 1995 Data Protection Directive 95/46/EC and articles 7, right to privacy, and 8, protection of personal data in the EU’s Charter of Fundamental Rights and Freedoms – CFRF) the 2006 Directive was invalid.  Among those reasons it included that the retention of the data was indiscriminate, the grounds for limiting the rights were too broad and not sufficiently specific, there was a lack of judicial authorisation or scrutiny and there were insufficient safeguards protecting those rights.

In December 2016 the CJEU was again requested in the Tele2 case to examine the compatibility of EU law protecting personal data, this time with the statutes in Sweden and the UK that were then covering the retention and access to telecommunications data linked to investigations into terrorism and serious crime. In Tele2 the CJEU also examined article 52 CFRF and the EU’s 2002 e-Privacy Directive 2002/58/EC.  Both Sweden and the UK’s statutes were found to be incompatible with EU law and therefore invalid. In Tele2 the CJEU did recognise that fighting terrorism and serious crime was important enough to be an objective of general interest to limit citizens’ rights to protection of personal data but added:

‘…however fundamental it may be, it cannot itself justify that national legislation providing for the general interest and indiscriminate retention of all traffic and location data should be considered to be necessary for the purposes of that fight.’

The CJEU held that for the retention and access to telecommunications data to meet EU law requirements:

1. The limitation of the exercise of rights and freedoms must be provided for by law; and
2. The limitations must be subject to the principles of proportionality; and
3. The limitations must be necessary; and
4. The limitations must meet the general interest recognised by the EU.

It can be argued that in their judgement the CJEU’s guidance to both Member State legislators and state investigatory bodies, the CJEU itself has lacked being specific as to essential criteria necessary and must be present to ensure when the objectives of fighting crime and terrorism meet the limitations as to the grounds of general interest that justifies the lawful retention of telecommunications data. The same can be said regarding providing guidance on what grounds would justify necessity. Throughout the judgement in Tele2 the CJEU repeat that to be compatible with the principle of proportionality conditions laid down in national legislation must not exceed the limits to what is strictly necessary. On what is regarded as strictly necessary the CJEU state national legislation must be based on objective criteria defining the circumstances and conditions under which competent authorities can access the telecommunications data. The Court added, presumably as a guidance, that access can only be granted:

‘…in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime.’

Adding:

‘[In] particular situations, where for example vital national security, defence or public security interests are threatened by terrorist activities, access to the data of other persons might also be granted where there is objective evidence from which it can be deduced that that data might, in a specific case, make an effective contribution to combating such activities.’ ([2016] All ER (D) 107, paragraph 119)

To ensure these conditions are fully met the CJEU held that as a general rule an authorisation to access and disclosure of telecommunications data be reviewed by either a court or an independent administrative body with the court or body’s decision being made following a reason request by the authorities that the purposes are for the prevention, detection or prosecution of crime. This echoed the CJEU’s decision in Digital Rights.

While prima facie the guidance provided by the CJEU in Tele2,  seems clear and laudable, this guidance only applies to certain investigations into serious crime or terrorism, and would arguably be more pertinent to serious crime investigations rather than terrorism investigations. Understanding why the CJEU limits its guidance that at times seems at variance with national courts, especially those in Member States with a common law legal system like Ireland and the UK could be explained in the rules concerning statutory interpretation. In common law jurisdictions the courts apply one of three rules, the literal rule, the golden rule and the mischief rule. In essence the courts apply the literal rule where statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. In other words, the law is to read, word for word and should not divert from its true meaning. The golden rule applies where the courts see an application of the literal rule leading to an absurdity, then the courts may then apply a secondary meaning. The mischief rule should only be applied where there is ambiguity in the statute where under the mischief rule the court’s role is to suppress the mischief the Act is aimed at and advance the remedy.

However, these traditional statutory interpretation rules are not seen as applicable when interpreting national law with EU directives and considering the CJEU’s decision making. This could be due to virtually all of continental European states’ jurisdciaitons not having a common law legal system, with their courts’ role being solely statutory interpretation, which is what is seen with the CJEU. In these circumstances two methodological rules have been identified in CJEU case law, the interpretative priority rule and the presumption of compliance rule.

Regarding the interpretative priority rule, national courts must favour the interpretation of the national legislation which is the most consistent with the result sought by the directive. The aim here is to achieve an outcome compatible with the provisions of the directive that is consistent within all of the Member States. The presumption of compliance rule is a presumption that the national court intended to transpose the directive fully into national law with a court assuming that the national legislature intended to comply entirely with the requirements of the directive. The presumption of compliance rule can result in problematic consequences in the event the national legislation or the ruling by the national court contains inadvertent inconsistencies with EU law. This occurs where a specific objective of an enactment in national law contradicts the directive’s requirements as subsequently interpreted by the CJEU and there is no indication the national legislature realised the presence of the inconsistency.

Compared to national courts in common law jurisdictions who have traditionally been granted a much wider leverage in their statutory interpretation rules, the EU rules could be perceived as fettering the national court judges’ traditional decision making and limiting in relation to guidance provided in judgements regarding how EU law is applied. This is relevant not just to national legislatures, but also to agencies that particular EU law applies to. It is submitted that this is because common law jurisdictions are used to having both the ratio of the case and obitur dictum in their case reports where, in most cases, common law courts’ obitur is generally more extensive than that seen in case reports on European judgements. Accepting that obitur is not the decision only persuasive argument, a wider and more expansive obitur is also useful in guiding agencies’ actions when applying the law in circumstances that do not quite match those in the facts of a case report. As seen in both the CJEU’s decisions in Digital Rights and Tele2 the guidance provided is more limiting than that seen in Member States’ national courts with a common law legal system when interpreting non-EU national law. This may be due to the difficult task that in trying to harmonise EU law among 28 Member States and the variance of legal procedures among those states, the CJEU is trying not to be too prescriptive in its decision making that could result in either providing too wide or narrow an interpretation of EU law.

The impact these cases have had on EU Member States’ national law can be seen in the following. In response to the Digital Rights decision, the UK introduced the Data Retention and Investigatory Powers Act 2015 that required communications operators to retain telecommunications data up to a period not exceeding 12 months. It also allowed for authorisation of interception warrants to UK intelligence and policing agencies to access the communications data when necessary in the interests of national security, to prevent or detect serious crime or to safeguard the UK’s economic well-being. This was the UK statute that the CJEU in Tele2 found to be incompatible with EU law. In March 2015 a national Dutch court in The Hague followed the CJEU’s decision in Digital Rights and found Holland’s surveillance and data retention law fell under the EU law and the CFRF. As the Dutch law failed to conform adequately to articles 7 and 8 of the CFRF, along with the court also finding insufficient safeguards, the Court suspended the Dutch law.Applying the Digital Rights decision similar legal issues were found in the respective domestic statutory provisions regarding surveillance of communications post-Digital Rights by the respective judiciaries in Sweden, Romania and Belgium where their respective courts have held their legislation to be in breach of EU law. This raises the question of how can state bodies investigating terrorism and serious crime legally access telecommunications data?

FaceTimeskypewhatsapp

Especially since the introduction of the e-Privacy Directive in 2002  we have seen the growth in forms of communication and the ways in which people carry out transactions from banking online, shopping online (including booking travel), send messages and speak to each other in various messaging services including Skype and FaceTime where people can converse while seeing each other. There are also encrypted messaging services that have been used by criminals and terrorists from Telegram to WhatsApp. Recently the likes of WhatsApp has been the preferred form of communication by criminals and terrorists as it is encrypted and apart from sending written messages, with this App individuals can send recorded voice messages to each other as well as pictorial images. Once cannot compare the technological wizardry that was the Nokia mobile phone to the i-Phones we have now that are in essence pocket sized computers. As such it is time the EU looked to introduce legislation that allows for internet and communications service providers to retain their telecommunications data for at least up to 12 months and allow state investigative bodies investigating acts of terrorism and serious crime access to that data. Since 2007 there have bee too many examples of how effective access to this data has been in the arrest and subsequent conviction of terrorists and those committing serious crime.

No doubt some reading this will have concerns over the state conducting widespread surveillance on its citizens and cite the US’ NSA and the Snowden revelations. In the protestations of the potential for state surveillance of telecommunication data an anomaly exists as many mobile phone and internet users do not appear to be so hesitant in passing on personal data, including sensitive data to private companies, including communications and internet service providers. In his book ‘Dawn of the New Everything: A Journey Through Virtual Reality’  the former Facebook president, Jaron Lanier says that based on the information individuals provide who they become friends with, what they buy and the news they consume is based on these providers’ algorithms adding that internet companies monitor their users’ habits and interests, which they feed into those companies’ algorithms. Yet, once the state agencies say it wants communications and internet service providers to retain their data in order to gain access to that data when the circumstances exist in relation to serious crime and terrorism, many individuals express a deep concern that the state is turning into a big brother state monitoring their every movement. This is not the case as many senior security service and police officers regularly state, the resources in both staffing levels and equipment are limited and as such both the security services and the police literally cannot monitor the electronic communications of every citizen, they can only target those who pose a threat to state security or who are involved in criminality.

The interests of national security and personal rights are not exclusive issues, but are inclusive and in today’s society we must all accept that state bodies investigating terrorism and organised crime must be able to have access to telecommunications data to deal effectively with terrorists and criminals. As such it is time the EU stopped paying lip service to this notion and fully recognised this by introducing legislation that allows this while effectively balancing citizens’ rights.

My terrorism book cover

You can read more detail on these issues in my forthcoming book ‘Terrorism: law & Policy‘ and I am currently writing an article on this issue and the Irish Dwyer appeal case that will be published after the appeal hearing.