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EU: How much is enough? Study finds that "there is no need to introduce new instruments for cross-border information exchange"

28 March 2012

• There is a "tendency that for "each and everything" a new database has been set up"
• 46% of police authorities class data protection as a major (21%) or just less than major (25%) obstacle to exchange
• Member States want greater access to "non-police data" such as that from EURODAC or Passenger Name Record systems

In December 2010, the European Public Law Organisation and the International Centre for Migration Policy Development completed an evaluation for the European Commission entitled 'Study on the status of information exchange amongst law enforcement authorities in the context of existing EU instruments'. [1] Only made public in September 2011, the most striking conclusion it draws is that:

"The existing legal and technical instruments are broadly sufficient and there is no need to introduce new instruments for cross-border information exchange."

Despite this, the EU continues to push ahead with new systems.

The study

The European Commission issued the contract for the study as part of its ongoing work into a European Information Exchange Model, which seeks to "take stock of information exchanges for the purposes of criminal investigations and criminal intelligence operations" [2] (), in order to achieve "better coherence and consolidation" in information exchange.

The two contractors interviewed a variety of law enforcement agencies from twelve countries - Austria, Bulgaria, Denmark, Estonia, Finland, France, Germany, Greece, Italy, Netherlands, Slovenia, and the United Kingdom. They were chosen in order to provide "geographical spread, various regions, various traditions in law enforcement, different types of borders, different type of Member State [i.e. old, new, non-Schengen] and different legal bases".

The evaluation begins with an outline and analysis of current information exchange procedures, laws and technologies; then discusses "obstacles hampering efficient cross-border information exchange"; law enforcement needs and requirements; and good practices.

Findings

Information exchange between law enforcement authorities in the EU is driven by the 'principle of availability', which states that information held by a law enforcement authority in one Member State should be available to a law enforcement authority in another Member State as if they were in the same country. Such a situation does not exist, and, as the study, is unlikely to while there are still "different national, legal and administrative systems, data protection legislations, and also significant interoperability problems". Nevertheless, the principle of availability "is certainly a vision worth pursuing".

There are numerous criticisms in the report. It is noted that Member States do not share enough information with Europol and Interpol; similar problems existing with pro-actively offering information to be placed in the EU's Customs Information System. This is not for lack of legal possibility, but a lack of "motivation to give information which may be of use to others". This is problematic because "naturally, databases are only as good as their input".

The profusion of different channels for information exchange can lead to confusion for law enforcement officials. The study lists over twenty existing or proposed systems, databases, legal instruments or policy initiatives. It notes that staff interviewed were not in favour of new systems: "Existing channels and existing IT communications networks should be used to their full extent before introducing new ones".

The growth in IT systems and databases for law enforcement authorities has largely been ad-hoc:

"One could observe the tendency that for "each and everything" a new database has been set up and new ones are in the pipeline. In practical terms, the reliability of the information will diminish from the user point of view if there are no measures to compensate for the flood of information There is a high risk that the trust in the value of new IT systems will decrease resulting in less usage."

Numerous obstacles to efficient cross-border exchange are listed, including trust; linguistic barriers; the identification of appropriate counterparts; and the problems of interoperability between different IT systems. Furthermore, a "lack of staff is evident in some (old) EU Member States".

These issues are compounded by "legal problems, especially data protection legislation, followed by secrecy and confidentiality problems". 46% of police authorities classed data protection as a major (21%) or just less than major (25%) obstacle to exchange. For secrecy and confidentiality rules over 50% felt they were an obstacle, with 15 classing them as a major problem, and 37% just less than major.

Furthermore, there are significant difficulties with obtaining telecommunications data from other Member States, despite the fact that these are "one of the most needed and requested pieces of information".

The study also suggests that "personnel at central level should have access to all relevant information and intelligence, or at least to administrative registers, indicating whether and where further details are held". This is seen as a way to overcome the fragmentation of databases at national level, and lack of uniform access provisions.

Different security classifications also impact upon information exchange, with some Member States suggesting that "harmonisation and detailed clarification of the classification of data types would, according to some MS, improve considerably cross-border information exchanges".

It is largely considered to be the differences in national legislation, rather than problems caused by EU legislation, that lead to problems in accessing information from other Member States. However, "different interpretations of EU legislation also sometimes lead to legal and practical problems".

Finally, it should be noted that a lack of comparable and thorough statistics is frequently cited as a problem for anaylsis and evaluation of arrangements and systems. Centralised registers detailing flows and types of information suggested as one possible solution.

Law enforcement needs

Direct access to foreign databases appears to be favoured by some Member States, although by no means all. Rather, "the majority of Member States are very keen on further development of HIT/NO-HIT systems for cross-checks rather than having direct access". Interviewees suggested that HIT/NO-HIT systems could be developed for those seeking information on: criminal intelligence; criminal records; denounced suspects; hooligans and violent demonstrators; firearms information; ID registers; sex offenders; telecommunications data.

(A hit/no-hit system tells an individual making a search whether the database contains the information they are seeking; standard legal procedures have to be followed to obtain the information.)

Nevertheless, some Member States remain in favour of direct access. A pilot project between the Netherlands, Belgium and one German federal state is mentioned. The authors comment that "it seems to be a possible forerunner for wider introduction and the extent of access to Germen policemen would be likely to be the same as it is for Netherlands policemen".

Although the overall conclusions of the study are that many Member States' law enforcement authorities are "weary of new systems" and would be happy with improvements to the current systems of information exchange, there are some who would like even greater access to different types of data. For example:

"According to Member States, access to "non-police data" such as EURODAC, EU-PNR should be accessible to the police authorities in future. The EURODAC database should be used for the identification of criminals who are found amongst illegal immigrants [with limitations] One option would be to start with those offences covered by the European Arrest Warrant."

Since the study was completed further systems for information exchange have come to light. A legislative proposal is due to be issued soon for the European Criminal Records Information System on Third Country Nationals, studies for which have also pushed for a centralised EU fingerprint database for convicted persons. There is also the Information Exchange Platform for Law Enforcement Authorities, a project that remains chiefly in the hands of Europol. It seems that despite the study's recommendations, the EU's thirst for more computer systems and databases may not yet be fully quenched.

Sources
[1] European Public Law Organisation and International Centre for Migration Policy Development, 'Study on the status of information exchange amongst law enforcement authorities in the context of existing EU instruments', December 2010
[2] European Commission, 'European Information Exchange Model'