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EU: Survey on police powers to exchange personal data across member states (1)

01 February 2005

- most police forces in member states have extensive powers to "autonomously" access and exchange data on individuals
- no data protection provision on individuals rights in draft Framework Decision

Responses to a survey by 22 EU member states (including Norway, Iceland and Switzerland who take part in the Schengen acquis), show that most police forces can access and exchange personal data with agencies in other member states without a judicial authorisation. The survey covers police forces but would apply to all law enforcement agencies (ie: immigration and customs) under the "Draft Framework Decision on simplifying the exchange of information and intelligence between law enforcement agencies of the member states of the European Union, in particular as regards serious offences including terrorist acts."

An essential criteria in the gathering and exchange of data on an individual requested by an agency in another EU state is whether a judicial decision or authority is required or whether the agencies are self-regulating (that is, not subject to any external authorisation).

The responses to the first general question looks at two stages: "pre-investigations" (ie, prior to establishing concrete evidence that a crime has or is about to be committed) and where an investigation is underway in the requesting state. In most EU states the police can access information "autonomously". In both categories only eleven out of 22 police forces would require "authorisation of a judicial authority" to get access to information in the pre-investigation stage and in only nine would this be a requirement if the information was not held and had to be obtained.

The second question lists 47 categories of information and intelligence and asks whether police can access these categories "autonomously" or whether they "can access but only with the authorisation of a judicial authority" or "cannot obtain without a decision of the judicial authority to use coercive measures".

Most police forces can access information and intelligence "autonomously" in many of the 47 categories. The categories include basic information which it might be expected that police forces would hold or get access to, for example, people convicted of an offence, wanted and missing persons, stolen vehicles and goods and firearms. Nearly all of the 19 police forces can access and exchange "autonomously" information on people suspected of a "concrete" crime and those "suspected" of criminal activity (who are under surveillance). Only Switzerland would need to get authorisation to hand over fingerprints, only Portugal, Switzerland and Belgium for DNA, only Luxembourg and Poland for driving licence and passport details, only Luxembourg, Netherlands and Latvia for permits details and fingerprints of foreign nationals, and only Luxembourg for passport data.

There are some categories which many forces can "autonomously" access and exchange data which might come as a surprise. Seventeen police forces can "autonomously" access "transport companies' passenger lists" only five have to get authorisation. Fifteen police forces can "autonomously" accessing "observation reports" (surveillance and background checks and interviews). Fifteen forces can "autonomously" accessing statements by "undercover agents". And fourteen police forces can "autonomously" access and pass over information on the documented questioning of suspects and witnesses without the need for authorisation.

It is on more intrusive forms of intervention or surveillance that a real divide in the powers of access emerges. When it comes to "autonomously" accessing the "the documentation of telephone tapping" nine police forces can do this without authorisation (Denmark, Estonia, France, Finland, Lithuania, Poland, Slovakia, Sweden and Norway) - everywhere else judicial authorisation is required. For "autonomously" accessing and exchanging the "document

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