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EU: Plans emerge for the collection of personal data outside European borders to obtain "comprehensive situational awareness and intelligence support"

30 October 2012

At the end of 2011, EU institutions and Member States began work to increase coordination between staff and institutions working on external and internal security policy. Ten months on, a progress report shows that, despite some teething problems, work is well underway with eight Joint Expert Panels established for different topics. [1] Perhaps the most contentious of these focuses on boosting the ability of EU agencies to collect and analyse information and intelligence - including personal data - gathered during the EU's police missions outside European borders.

A "building block" for EU internal security

"Potential actions" include the suggestion that EU police missions that take place in the framework of Common Security and Defence Policy (CSDP), such as those in the Occupied Palestinian Territories or Afghanistan, could gather intelligence and pass it to agencies concerned with internal security. This would include agencies such as Europol, whose work primarily involves the gathering and analysis of information and intelligence related to crime and terrorism inside the EU, and FRONTEX, the EU border control agency.

In recent months, the working group dealing with these issues has drafted a "Toolkit Handbook on Intelligence Led Policing (ILP) for Civilian Missions." It aims to help EU-led police missions abroad "support the implementation of an intelligence-led policing model in the host country" as a "building block [to] further serve the purpose" of developing "comprehensive situational awareness and intelligence support to the EU."

The paper's authors, the "CSDP-FSJ Core Team", put forward a number of questions: Is Intelligence Led Policing indeed a building block for the intended support of the EU? Are the definitions used in the Handbook a valuable basis for gathering intelligence "supporting the EU"? How should the different steps of the intelligence cycle be organised to support the EU? How should information/intelligence gathered by CSDP missions be disseminated at the EU level?

The EU's two main intelligence services - the Intelligence Analysis Centre (INTCEN) and the EU Military Staff - will be involved in developing this work. This reflects civil-military cooperation in other fields such as the development of the EU's Maritime Surveillance System, and indicates that it is not simply police-related information and intelligence that are at stake.

Personal data

A further "line of action", which has not yet been examined by the Joint Expert Panel, will:

"Examine the conditions for a CSDP mission to gather personal data in a Host Country and transfer those data to a Member State or to any relevant EU Body. Sub action: Elaborate a legal framework for technical police cooperation with a host country, in full respect of the EU data protection regime."

It is clear that there is interest in allowing other agencies to gather personal data alongside Europol, which is currently only allowed to receive personal data from the EU police mission in Kosovo.

Under the heading "EU agencies common potential actions" comes the following:

"Establishing a legal framework to allow a strengthening Mission type [i.e. where EU units are brought in to strengthen, rather than substitute for, local police forces] to gather crime-related personal information in a host country and process them, including their exchange with Member States and EU agencies concerned."

If these proposals move forward, significant changes would be required to the legal frameworks of the EU's justice and home affairs (JHA) agencies such as Europol, FRONTEX and Eurojust, all of whom were found to have differing levels of compliance with EU data protection standards by the European Data Protection Supervisor. [2]

Attempting to reform legal frameworks to permit the collection and analysis of personal data from outside the EU - controversial in itself - will also inevitably raise questions as to whether EU agencies will at some point be deploying their own intelligence agents.

"Exchange of information and mutual support"

Another Joint Expert Panel is investigating the possibility of integrating internal agencies which deal with Justice and Home Affairs issues into the planning process for CSDP missions. Europol, for example, may be involved "where proven techniques of threat assessment could be beneficial to decide on the scope and mandate of the future missions" and may be called upon to "support Host Countries in fighting organised crime and corruption."

Europol could also provide witness protection programs "where missions do not have the capacity to protect and relocate witnesses" and Europol experts could participate in and "reinforce" CSDP missions "for a limited period of time."

Similar work is foreseen for FRONTEX. The document identifies the need to "establish the conditions for optimize [sic] the exchange of information and sharing analytical products between FRONTEX and CSDP missions," and there could be "participation of FRONTEX experts" as well as "Member States' border guards, who are listed in the FRONTEX Pool for European Border Guard Teams" in order to "reinforce a CSDP mission for a limited period of time, the existing legal framework permitting."

Exporting border management

"Reinforcing" CSDP missions may not be the only reason that FRONTEX experts are deployed outside the EU's borders. Just as the EU wishes to export the model of intelligence-led policing, so too it sees opportunities for "disseminating EU/national best practices regarding border management capability development and cooperation in the field of training of border guards."

FRONTEX already works with non-EU countries to help disseminate "best practices regarding border management" - for example, in Belarus, where "border guards participate in FRONTEX operations in the framework of a working agreement signed with the Agency in 2009." [2]

The Agency's net has been spread ever more widely in recent years, with assistance provided to a large number of countries including Nigeria, Senegal, Serbia and Armenia, despite continued heated debate over the efficacy and ethics of the European border management model.

The progress report outlines further ambitions, with the possible "establishment of a general working arrangement between HR [High Representative of the Union for Foreign Affairs and Security Policy] and FRONTEX covering the aspects above and any other topics related to the cooperation within the framework of CSDP missions and beyond." What the "and beyond" refers to is unknown.

What about the Member States?

Member States will also be involved, and not just in their role as suppliers of personnel to agencies such as FRONTEX. The same Joint Expert Panel responsible for evaluating the collection of personal data by EU agencies will also "explore and elaborate clear rules and methods of cooperation between CSDP missions and EU Member States law enforcement services" which will include "the possibility for CSDP missions to host Member States liaison officers."

The feasibility of establishing "pre-identified Teams (national or multi-national) to support CSDP activities" will be examined. Presumably this means that a pool of Member States' law enforcement or border control officers will be on call at any given time to be deployed in an EU mission.

Another action sees a possibility for working out ways to utilise the experience gained by Member States' officials that have previously worked or are currently working abroad, either in the framework of police cooperation projects overseen by the EU or through bilateral arrangements between Member States and non-EU countries.

Inside-out, outside-in

In 2003, the European Security Strategy stated that "the internal and external aspects of security are indissolubly linked." Since then a significant amount of work has been aimed at ensuring that agencies dealing with these two traditionally separate realms of security are better-coordinated.

The current work on "Strengthening ties between CSDP and FSJ" is led by the European External Action Service's Crisis Management and Planning Department, along with the European Commission and a number of other "EU actors" such as Europol, FRONTEX, CEPOL (the European Police Training College), the EU Satellite Centre, Interpol and Member States.

Officials from these bodies are working in eight Joint Expert Panels to "carry out identification of potential deliverables for the 12 lines of action to be initiated as a priority in the short-term," with the lines of action divided into five areas: comprehensive situational awareness and intelligence support to the EU; exchange of information and mutual support; improving mechanisms in the decision-making process; improving cooperation in planning EU external action; and capabilities: human resources and training.

The "CSDP-FSJ Core Team" is responsible for "steering work on each of the lines of action, ensuring a proper coordination and supervision of work carried out by the 'Joint Expert Panels' and assessing the conformity of the performance with relevant institutional setting as well as the legislations applicable."

The current progress report indicates that the Core Team is not entirely happy.

Administrative issues have been encountered in establishing the Joint Expert Panels, with a lack of people volunteering to coordinate the groups. Technical issues - "the establishment of a shared platform" for communication - have also hindered work.

On a practical level, the Core Team notes that "the outcomes of the Joint Expert Panels are somewhat uneven: some have advanced at a faster pace than others, with concrete projects on the table; others are still in an exploratory phase."

This stems from the fact that while Member States "are on the whole eager to join in the exercise (some Panels list up to 23 participants), and some Member States experts were committed to the work and made valuable contributions… participation was of an observatory or even 'monitoring' nature in many cases, and this impacted on results."

More closely involved in the process were the EU's Justice and Home Affairs agencies - Europol, FRONTEX, CEPOL and Eurojust - who "have significantly contributed to it."

Work is ongoing, with the Core Team saying that actions will be "clustered and cascaded, as much as possible," and undertaken with a reduced number of reconfigured Joint Expert Panels who will create "informal project teams composed of only dedicated and active personnel with the required expertise for development of the specific identified actions."

The Crisis Management and Planning Department will continue to work with "the Commission and all other relevant actors" in leading "the coordination of the development of the Road Map." There will be another review of progress by the end of 2012.

Sources
[1] Crisis Management and Planning Department, 'Strengthening Ties between CSDP and FSJ road map implementation - Progress report', 24 September 2012
[2] European Data Protection Supervisor, 'EDPS general survey shows that EU institutions and bodies have different levels of data protection compliance', 30 January 2012
[3] 'Border control and deportation operations to Belarus', Statewatch News Online, 26 September 2012